Opinion
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. CR-08-01656.
ELIA, J.
On July 25, 2008, the San Benito County District Attorney charged appellant with one felony count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). The complaint alleged that appellant had suffered five prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b)-(i), and had two prison priors within the meaning of Penal Code section 667.5.
On October 15, 2008, appellant pleaded guilty to felony possession of methamphetamine and admitted that three of his prior convictions qualified as strikes. Before he entered his plea, the court informed appellant that but for a grant of probation he would be facing a prison sentence of 27 years to life. The court suspended imposition of sentence and admitted appellant to three years formal probation under "Prop 36." As a condition of probation, the court ordered appellant to enroll in and successfully complete a drug treatment program for services up to 12 months in duration. In addition, relevant here, the court ordered that appellant not engage in any criminal conduct, or have contact with any parolee.
It appears that appellant was not eligible for Prop 36 probation. (Pen. Code, § 1210, subd. (b)(1).)
On June 3, 2009, appellant admitted a number of probation violations. The court revoked appellant's probation. Thereafter, the court denied appellant's motion to strike any of his prior strike convictions. On December 30, 2009, the court sentenced appellant to 27 years to life in state prison under the "Three Strikes" law. Appellant filed a timely notice of appeal.
The petition to revoke appellant's probation alleged that he had failed three drug tests, failed to obey all laws and had contact with another parolee.
On appeal, appellant asserts that his trial counsel was ineffective in failing to move the court to reduce his felony drug possession conviction to a misdemeanor and the court abused its discretion in failing to strike one or more of his prior strikes. Additionally, appellant challenges the length of his sentence on the grounds that it constitutes cruel and/or unusual punishment, and violates double jeopardy principles. For reasons that follow, we affirm.
Subsequently, counsel has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In the petition, Mizner renews his contention that trial counsel was ineffective for failing to move the court to reduce his felony drug possession conviction to a misdemeanor. By separate order filed this day, we deny the petition for writ of habeas corpus. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
Appellant's Criminal History
Not including his most recent offense or his juvenile record, appellant's criminal history consists of at least 13 felonies, 14 misdemeanors, and seven parole violations. According to appellant's probation officer, appellant "has a horrendous criminal record dating back to 1973 when he was a minor. In 1975, he was finally declared a Ward of the Juvenile Court and later moved on to the adult arena of crime. His adult convictions include petty thefts, burglaries, possession of stolen property, brandishing a weapon, vandalism, false testimony, destruction of jail property, and driving on a suspended license. He has served four prior prison terms for unrelated convictions and he was on active parole when he was arrested on this matter. [Appellant] technically did not qualify for Prop 36; however, it was granted. His last prison incarceration was in 2000 for assault with a deadly weapon causing great bodily injury and dissuading a witness by force or threat. Prior to this, he was incarcerated at the State level for arson convictions that destroyed almost a complete block of downtown Hollister in 1991. [Appellant]'s prior performance both on probation and parole has been unsuccessful."
Appellant has requested that this court take judicial notice of our prior unpublished opinion in case No. H021026, in which this court outlined the facts behind appellant's prior convictions for assault with a deadly weapon, intimidating a witness and arson. Appellant contends that notice of the unpublished opinion is necessary because the record in the current appeal fails to "clearly articulate" the basis of those prior convictions. Since the information contained in that opinion was not before the trial court at sentencing we decline appellant's request. (People v. Leonard (2007) 40 Cal.4th 1370, 1393 [on appeal, a court reviews the appellate record for error without considering matters not presented to the trial court].)
The Current Offense and Proceedings Below
It is not necessary to detail all the facts of appellant's current offense other than to note that on July 23, 2008, appellant, while riding his bike through a closed construction area, was stopped by a police officer, and consented to a search of his person. The officer discovered a small bag containing 0.46 grams of methamphetamine in the coin pocket of appellant's pants.
The details of the current offense are taken from the police report.
After appellant violated his probation, but before sentencing, appellant brought a Romero motion asking the court to strike all his prior strike convictions. In essence, appellant argued that if the court did not strike one or more of his prior strike convictions the harshness of the recidivist penalty would be grossly disproportionate to the gravity of his current offense.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Citing appellant's inability to "capitalize" on his previous grant of probation as well as the instant offense being "a felony violation of the Health [and] Safety Code, " the court denied the motion. Specifically, the court noted that appellant had "already had the chance that he wouldn't otherwise have necessarily had before having to face this Romero motion and, unfortunately, was unable to capitalize on the chance." Thereafter, at sentencing, the court denied appellant probation based "upon the statutory ineligibility." Then, based on appellant's "extensive criminal history, " the court sentenced appellant pursuant to Penal Code section 1170.12 to 27 years to life, as recommended by appellant's probation officer.
The court imposed a sentence of 25 years to life pursuant to the three strikes law and added two years for the two prison priors pursuant to Penal Code section 667.5.
Discussion
I. Ineffective Assistance of Counsel
Appellant contends that his counsel was ineffective in failing to request that the court exercise its discretion to reduce his possession of methamphetamine conviction to a misdemeanor.
A defendant claiming ineffective assistance of counsel must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Frye (1998) 18 Cal.4th 894, 952 overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To put it another way, appellant must demonstrate " '(1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner.' " (In re Jones (1996) 13 Cal.4th 552, 561.)
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Maury (2003) 30 Cal.4th 342, 389.)
It is not necessary to establish deficient performance before considering the issue of prejudice: " 'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079.)
Here, assuming for the sake of argument that defense counsel had no reasonable tactical decision for failing to bring a motion to reduce appellant's felony conviction to a misdemeanor, we find no prejudice. That is, it is not reasonably probable that if defense counsel had made the motion it would have been granted.
The record strongly suggests that the court would not have granted a Penal Code section 17, subdivision (b)(3) motion. We base this conclusion on the fact that the court had already denied appellant's Romero motion; that at the Romero hearing all appellant could argue was that he was a drug addict and charged with a relatively small amount of methamphetamine and his drug treatment counselor reported appellant's limited success in treatment before he failed the program. Further, appellant has an extensive criminal history.
Although "three strikes prior convictions do not preclude a trial court from reducing an offense originally charged as a felony either by imposing a misdemeanor sentence (§ 17(b)(1)) or by declaring it a misdemeanor upon a grant of probation (§ 17(b)(3))" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979), "the current offense cannot be considered in a vacuum; given the public safety considerations underlying the three strikes law, the record should reflect a thoughtful and conscientious assessment of all relevant factors including the defendant's criminal history." (Ibid.)
All discretionary authority is contextual, thus, the factors that direct similar sentencing decisions are relevant, including protecting society, punishing the defendant, encouraging the defendant to lead a law-abiding life in the future and deterring him from future offenses, deterring others from criminal conduct by demonstrating its consequences, and preventing the defendant from committing new crimes by isolating him for the period of incarceration. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.) Further, in the context of reducing a felony to a misdemeanor, the defendant's potential for rehabilitation is another factor to be considered. (See In re Anderson, supra, 69 Cal.2d at p. 627.)
The purpose of a trial judge's sentencing discretion to downgrade certain felonies is to "impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon." (In re Anderson (1968) 69 Cal.2d 613, 664-665 (conc. opn. of Tobriner, J.).) The reduction of a wobbler to a misdemeanor is not based on the notion that a wobbler offense is "conceptually a misdemeanor." (Necochea v. Superior Court (1972) 23 Cal.App.3d 1012, 1016.) Rather, it is "intended to extend misdemeanant treatment to a potential felon" and "extend more lenient treatment to an offender." (Ibid.)
Here, at the Romero hearing, it is quite apparent that the court carefully looked at the current offense and appellant's failure to benefit from the grant of probation and the egregiousness of appellant's prior convictions in denying appellant's motion to strike his strikes. Accordingly, since the court considered the factors that are relevant in deciding whether to reduce a felony to a misdemeanor in the context of the Romero hearing, and found against appellant, appellant cannot demonstrate that even if defense counsel had made a motion it is reasonably probable it would have been granted.
The court concluded that counsels' arguments had "describe[d] the classic meat on the three strikes laws in terms of the application and the circumstances similar to the instant circumstances. [Defense counsel] pointed out the issue of why disparity between... the current conduct and the result based upon the prior offenses, and of course, [the prosecutor] then points to the egregiousness of the prior offenses of the underlying strike. [¶] Bottom line is you have to balance both of those factors, and that's what I'm doing."
For that reason, we reject appellant's ineffective assistance of counsel claim.
II. Cruel and Unusual Punishment
Appellant argues that his sentence of 27 years to life for a felony drug offense constitutes cruel and/or unusual punishment under both the Eighth Amendment of the federal Constitution ("cruel and unusual punishments [shall not be] inflicted"), and article I, section 17, of the California Constitution ("Cruel or unusual punishment may not be inflicted or excessive fines imposed").
i. Eighth Amendment
The Eighth Amendment prohibits imposition of a sentence that is "grossly disproportionate" to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11, 20-21.); People v. Carmony (2005) 127 Cal.App.4th 1066, 1076.) However, in a noncapital case, successful proportionality challenges are "exceedingly rare." (Ewing, supra, 538 U.S. at pp. 20-21, [sentence of 25 years to life in prison for felony theft of golf clubs under California's Three Strikes law, with prior felonies of robbery and burglary, did not violate federal prohibition on cruel and unusual punishment].)
"In the rare case where gross disproportionality can be inferred from (1) the gravity of the offense and harshness of the penalty, the court will consider (2) sentences imposed for other offenses in the same jurisdiction and (3) sentences imposed for commission of the same crimes in other jurisdictions. (Harmelin v. Michigan (1991) 501 U.S. 957, 1005, 111 S.Ct. 2680, 2707, 115 L.Ed.2d 836, 871 [sentence of life in prison without possibility of parole, for possessing 672 grams of cocaine, was not cruel and unusual punishment].) '[I]t is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play.' [Citations.]" (People v. Haller (2009) 174 Cal.App.4th 1080, 1088.)
Appellant urges this court to compare the alleged insignificance of his drug possession conviction with the magnitude of his sentence. Appellant's argument fails to recognize that the triggering offense is not viewed in isolation. Contrary to appellant's approach, his strike convictions were not irrelevant, and his sentence cannot be viewed just as punishment for possessing a small amount of methamphetamine; it was punishment for committing a felony and doing so as a recividist offender. In other words, he "was punished not just for his current offense but for his recidivism. Recidivism justifies the imposition of longer sentences for subsequent offenses. [Citation.]" (People v. Cooper (1996) 43 Cal.App.4th 815, 825.)
To paraphrase the United States Supreme Court, in weighing the gravity of appellant'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.) "Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the 'triggering' offense: '[I]t is in addition the interest... in 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. [Citations.] To give full effect to the State's choice of this legitimate penological goal, our proportionality review of appellant's sentence must take that goal into account." (Ibid.)
In Rummell v. Estelle (1980) 445 U.S. 263, 284-285, the United States Supreme Court explained that society is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. In that case, the defendant was given a mandatory life sentence for stealing $120.75 and having prior convictions for fraud involving $80 worth of goods and passing a forged check for $28.36. (Id. at p. 265.) The court rejected the defendant's claim that his sentence was disproportionate to the severity of his current offense. The court pointed out that the primary goals of a recidivist statute are 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.... [T]he 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." (Id. at pp. 284-285.)
Subsequently, in Lockyer v. Andrade (2003) 538 U.S. 63, the court rejected a similar claim. There, the defendant stole $153.84 worth of videotapes from two stores on separate occasions. A jury convicted him of two counts of petty theft with a prior and found that he had at least two prior strike convictions. The court sentenced him under the three strikes law to two consecutive life terms. The record revealed that in 1982, he suffered a state misdemeanor theft conviction and a few felony burglary convictions. In 1988, he suffered a federal conviction for transporting marijuana. In 1990, he suffered a state misdemeanor petty theft conviction and a second federal conviction for transporting drugs. In 1991, he was arrested for a state parole violation -- escape from federal prison. In 1993, he was released on parole, and in 1995, he committed the two current offenses. Given these circumstances, the court did not find the defendant's two life terms to be unconstitutional. (Id. at p. 77.)
Since the case arose under the Antiterrorism and Effective Death Penalty Act, the court did not directly address the constitutionality of the sentence. However, the court held that it was not an unreasonable application of 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. (Lockyer v. Andrade, supra, 538 U.S. at p. 77.)
Thereafter, in Ewing v. California, supra, 538 U.S. 11, the defendant was convicted of grand theft-he stole three golf clubs worth $399 each. Under the three strikes law, the trial court imposed a life term. The record revealed that the defendant's criminal history spanned from 1984 to 1999 and included misdemeanor and felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of drugs, trespass, and unlawful possession of a firearm. There too, the court did not find the defendant's sentence to violate the Eighth Amendment. (Id. at p. 30.)
Ewing was a plurality opinion. The concurring justices reasoned that non-capital sentences were not subject to proportionality analysis. (Ewing v. California, supra, 538 U.S. at pp. 31-32.)
Appellant's sentence and circumstances are not distinguishable from those in these cases and do not suggest that his punishment is unconstitutionally disproportionate. When appellant's long history of recidivism is added to his felony possession of methamphetamine, his sentence is not grossly disproportionate. Concerning his recidivism, we note that appellant's criminal history began in 1977 and continued into the late 1990s (when he was incarcerated for 50 years-to life) with convictions for petty theft, burglary, receiving stolen property, brandishing a weapon, inducing false testimony, vandalism, possession of a controlled substance, arson, destruction of jail property, driving on a suspended license, dissuading a witness by force or threat, and assault with a deadly weapon. Moreover, he was on parole when he committed his current offense.
It appears that appellant served less than 10 years of that sentence and was released on parole.
In as much as appellant relies on the "wobbler" nature of his drug offense, this is "of no moment." (Ewing v. California, supra, 538 U.S. at p. 28 [third strike status as a wobbler is irrelevant].)
In sum, this is not the "extreme" case necessary to justify a finding that noncapital punishment violates the Eighth Amendment. As respondent points out, appellant describes himself as a drug addict and attributes much of his criminality to his addiction. Thus, "the fact that appellant's triggering offense was drug related recommends a stricter sentence because it demonstrates an inability to control the source of his lawbreaking." We agree.
Since we have concluded that appellant's sentence is not grossly disproportionate to the gravity of his offenses, we need not engage in intra- or inter-state comparisons. (People v. Haller, supra, 174 Cal.App.4th at p 1092; Harmelin v. Michigan, supra, 501 U.S. at p. 1005 (conc. opn. Kennedy J.) [such comparisons necessary only in the rare case in which a threshold comparison of the crimes committed and the sentence lead to an inference of gross disproportionality].)
ii. California Constitution
Similar to the foregoing, appellant argues that his sentence is impermissible under the California Constitution's ban on cruel or unusual punishment.
A punishment may violate the California Constitution if "it 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 (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch), superseded by statute on other grounds as stated in People v. West (1999) 70 Cal.App.4th 248, 256.) To determine whether a sentence is so disproportionate to the crime that it violates the California Constitution, we consider "(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; (3) a comparison of the challenged penalty with punishment prescribed for the same offense in other jurisdictions. [Citations.]" (People v. Thompson (1994) 24 Cal.App.4th 299, 304.)
Even a punishment "which is not disproportionate in the abstract, is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability." (People v. Dillon (1983) 34 Cal.3d 441, 480.) In making such a determination, the court evaluates the nature of the offense and the offender with particular regard to the degree of danger both present to society. (Id. at pp. 479, 482-489.) When evaluating the nature of the offense, the court considers the circumstances of the particular crime, such as motive, the way the crime was committed, and the extent of the defendant's involvement and the consequence of his acts. (Id. at p. 479.) Similarly, the court looks at the specific offender and asks "whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.) In conducting both analyses, the court pays particular attention to the degree of danger both the offense and the offender present to society. (Ibid.)
By appellant's own admission he is a drug addict, and it appears that drug use has driven his extensive criminality. Even if we accepted for the sake of argument that possession of methamphetamine is a relatively minor offense under other circumstances, it is not in appellant's case. Rather, appellant's use of drugs has brought about his commission of frequently violent or highly destructive crimes. Although appellant argues his offense was an "extremely minor, non-violent and essentially victimless" crime, this is not so in the context of appellant's extensive criminal history.
It does not appear that appellant has gained any control over his addiction and as such he presents a danger to the public. Even on Prop 36 probation appellant continued to use methamphetamine and break the law. He failed three drug tests, drove on a suspended license, and had contact with a fellow parolee all the while knowing that he faced a 27 year to life sentence if caught. Given this background, the record lacks any evidence that appellant would be able to avoid falling back into his pattern of criminal behavior.
According to the prosecutor, at the time appellant was arrested for violating his probation, he was driving on a suspended license with two passengers in the car. One passenger was a parolee illegally in possession of 27 prescription pills, while the other passenger had 4.26 grams of marijuana. During his arrest, appellant was placed in the rear of a patrol car and began screaming obscenities and hitting his head against the patrol car cage and window.
Based on the foregoing, we find nothing about the sentence in this case that shocks the conscience or offends fundamental notions of human dignity when looking at the offender or the offense.
With respect to the second Lynch technique, appellant compares his sentence of 27 years to life to lesser terms imposed for first-time offenders committing rape, kidnapping and voluntary manslaughter, among other crimes. Further, appellant provides an exhaustive list of statutory schemes from other states to California's Three Strikes law, in accordance with the third Lynch technique. We question whether an analysis based on the last two Lynch techniques, which deal with "intercase" review, is still required. The California Supreme Court has held in death penalty decisions subsequent to Lynch that intercase proportionality review "is not mandated under our state Constitution in order to ensure due process and equal protection, nor is it required in order to avoid the infliction of cruel or unusual punishment." (People v. Crittenden (1994) 9 Cal.4th 83, 156; accord, People v. Barnett (1998) 17 Cal.4th 1044, 1182; People v. Bradford (1997) 15 Cal.4th 1229, 1384 (Bradford).) The court has indicated that all that is required is "intracase" review, i.e., an evaluation of whether the sentence is "grossly disproportionate" to the offense. (Bradford, supra, 15 Cal.4th at p. 1384.)
In any event, a comparison of appellant's sentence to that of other criminals whose crimes are more serious than appellant's current offenses is inapposite to three strikes sentencing. It is a defendant's "recidivism in combination with his current crimes that places him under the three strikes law." (People v. Ayon (1996) 46 Cal.App.4th 385, 400, disapproved on another point in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) As the court in People v. Romero (2002) 99 Cal.App.4th 1418, 1433, noted, because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare appellant's punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons.
Nor does appellant's analysis of recidivist statutes from other states compel a conclusion that his sentence is disproportionate. In People v. Martinez (1999) 71 Cal.App.4th 1502 (Martinez), the court undertook an extensive study of recidivist statutes throughout the United States. (Id. at pp. 1512-1515.) The Martinez court concluded that, even if California's recidivist sentencing scheme is among the most extreme in the nation, it does not necessarily constitute unconstitutional cruel or unusual punishment. (Id. at p. 1516.) California is not required to "march in lockstep with other states" in formulating its penal code. (Ibid.) Appellant's assertion that every other state but one would impose a less serious punishment than he received is, therefore, unavailing.
According to appellant's own findings, his sentence is not greatly disproportionate when compared to that which could be imposed in other states. According to appellant, nine other states may impose maximum sentences of 20 years to life, and four others may impose even greater sentences than appellant received-Nevada authorizes life without parole, Georgia mandates 30 years without the possibility of parole and Mississippi requires life without parole. Therefore, according to appellant's own findings, his sentence is not greatly disproportionate when compared to that which could be imposed in other states.
Accordingly, we conclude that appellant's sentence is proper under all three prongs of the Lynch analysis.
III. Failure to Strike a Strike
Appellant contends that the court abused its discretion in failing to strike one of his prior strike convictions.
Under Penal Code section 1385, subdivision (a), a judge "may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that "a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice' pursuant to... section 1385[, subdivision] (a)." (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) When a trial court considers a Romero motion, it "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 [spirit of the three strikes law] scheme[ ] 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." (Id. at p. 161.) The Three Strikes law "establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike" unless the trial court deems the defendant falls outside the three strikes scheme. (People v. Strong (2001) 87 Cal.App.4th 328, 337.) Only under "extraordinary" circumstances can a trial court find a defendant "fall[s] outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack." (Id. at p. 338.)
In his written motion, appellant argued that the "current offense and violation of probation are so disproportional to the punishment as to call for the court to use its inherent power to strike the offense." Similarly, during the hearing on the Romero motion defense counsel argued that there was "a wide disparity or great disparity between the conduct and the end result." Defense counsel pointed out to the court that appellant had been a foster child and was only now "finally dealing with the issue that is bringing him before the court, which is he had a drug problem and an acute drug problem, and it's being addressed. Other than that, we have a suspended license." Counsel went on to argue, "[i]f the court denies the motion under Romero, he is going to go to prison for life. I think it’s a nine-year-old disparity between his last conviction and today -- actually 10 years now, and I just don't think that it's right." Counsel urged the court to strike at least one strike if not two and give appellant "a chance to rehabilitate himself."
Thereafter, the prosecutor pointed out that appellant was not being punished for "just a small amount of methamphetamine." Rather, appellant was a third striker who had "burned down a substantial part of the city of downtown Hollister, " was sentenced and released, and "was on his way to jail on another charge that he had picked up along the way and he kicked a woman in the face, broke her nose, and then threatened her if she were to tell the cops about it, and he was convicted of that." Further, the reason that there was a 10 year gap between appellant's last conviction and his current conviction was because "[t]hat 10 years was spent in prison."
As noted, ante, citing appellant's inability to capitalize on his previous grant of probation as well as appellant's current offense being a felony, the court denied the motion. The court noted that the prosecutor had pointed out the "egregiousness of [appellant's] prior offenses of the underlying strike."
In People v. Carmony (2004) 33 Cal.4th 367, our Supreme Court held that a court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (Id. at p. 373.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
On the record before us we have no doubt that the court's decision did not " 'fall[ ] outside the bounds of reason' under the applicable law and the relevant facts [citations]." (Williams, supra, 17 Cal.4th at p. 162.) Nor was it irrational or arbitrary.
For the same reasons that we have concluded that appellant's sentence does not constitute cruel and/or unusual punishment, we find that the court did not abuse its discretion in denying defendant's Romero motion.
IV. Double Jeopardy
Appellant contends his sentence violates the federal Constitution's proscription on double jeopardy. In essence, appellant's argument is that the sentence here is so disproportionate to the triggering offense that the offense alone cannot support the sentence, and therefore, he is being punished for past conduct.
Both the state and federal Constitutions prohibit the state from placing a defendant twice in jeopardy for the same offense. (U.S. Const., 5th Amend., Cal. Const., art. I, § 15; People v. Fields (1996) 13 Cal.4th 289, 297-298.) " '[The Fifth Amendment guarantee against double jeopardy] consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.' " (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1519-1520 (White Eagle).) Nevertheless, the double jeopardy clause does not prohibit the imposition of enhanced punishment under a recidivist statute. (Witte v. United States (1995) 515 U.S. 389, 400; White Eagle, supra, 48 Cal.App.4th at p. 1520.) "Recidivist statutes do not impose a second punishment for the first offense in violation of the double jeopardy clause of the United States Constitution. [Citation.] Moreover, the double jeopardy clause does not prohibit the imposition of multiple punishment for the same offense where the legislature has authorized multiple punishment. [Citation.]" (White Eagle, supra, at p. 1520.)
In essence, appellant argues that his 27-years-to-life sentence constitutes punishment for his past conduct rather than his present crimes. Specifically, he states that possession of methamphetamine as such is not punished in California, but rather results in probation. His sentence, therefore, cannot be characterized as aggravated punishment for the offense. Its legal predicate is his criminal history. In support of his double jeopardy objection, defendant cites People v. Carmony (2005) 127 Cal.App.4th 1066, (Carmony II), in which the court stated: "Past offenses do not themselves justify imposition of an enhanced sentence for the current offense. [Citation.] The double jeopardy clause prohibits successive punishment for the same offense. [Citations.] The policy of the clause therefore circumscribes the relevance of recidivism. [Citations.] To the extent the 'punishment greatly exceeds that warranted by the aggravated offense, it begins to look very much as if the offender is actually being punished again for his prior offenses.' [Citation.]... [¶] When the purpose of a penalty is to punish recidivism and not the current offense, the penalty is for past crimes and as stated, is proscribed." (Id. at p. 1080.) Nevertheless, while the court loosely peppered its analyses with double jeopardy terminology, it decided its case on the grounds of cruel and unusual punishment. (Id. at p. 1089.) " '[I]t is axiomatic that cases are not authority for propositions not considered. [Citations.]' [Citation.]" (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1153.) Thus, the case does not stand as authority for the proposition that a three strikes sentence may be violative of double jeopardy proscriptions. Moreover, the case recognized that recidivists could be punished more severely than first time offenders without violating the prohibition against double jeopardy. (Carmony II, supra, at p. 1079.)
We reject appellant's blanket assertion that possession of methamphetamine is not punished in California, but rather results in probation. (Pen. Code, § 1210.1, subd. (b), Health & Saf. Code, § 11377, subd. (a).)
Appellant does cite one federal case that appears to support his position. Duran v. Castro (E.D.Cal.2002) 227 F.Supp.2d 1121, cited by appellant does not alter our analysis and conclusion however. Decisions by lower federal trial courts are not binding on California Courts of Appeal. (People v. Bradley (1969) 1 Cal.3d 80, 86.) Furthermore, appellant's reliance on the dissenting opinion in Lockyer v. Andrade, supra, 538 U.S. at page 81, is unpersuasive, as we follow the majority opinions.
Here, appellant, while on parole, was convicted of drug possession and admitted to Prop 36 probation after sustaining previous convictions for petty theft, burglary, receiving stolen property, brandishing a weapon, inducing false testimony, vandalism, possession of a controlled substance, arson, destruction of jail property, driving on a suspended license, dissuading a witness by force or threat, and assault with a deadly weapon/by force likely to produce great bodily injury. While on Prop 36 probation appellant continued to show a complete disregard for the law by continuing to use drugs, driving on a suspended license and having contact with a fellow parolee. Thus, appellant continues to show a strong disregard for the law, making enhancement of his sentence under the recidivist Three Strikes law particularly appropriate. The imposition of appellant's current sentence, pursuant to the Three Strikes law, does not violate double jeopardy proscriptions.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.