Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIF124010. Dennis A. McConaghy, Judge.
Robert E. Boyce, 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, Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant Henry Lee Morris was convicted of possession of a controlled substance under Health and Safety Code section 11350, subdivision (a) (count 1) and being under the influence of a controlled substance under Health and Safety Code section 11550, subdivision (a) (count 2). The trial court found that defendant had served four prior prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to 25 years to life on count 1 and 365 days in jail on count 2. The court also imposed four years for the prior prison term enhancements to run concurrently with the sentence imposed on count 1.
Defendant’s sole claim on appeal is that his sentence constitutes cruel and/or unusual punishment. For the reasons set forth post, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
On May 27, 2005, around 7:00 p.m., Riverside Police Officer Kevin Townsend, accompanied by several other officers, went to defendant’s residence in Riverside. Defendant and his brother, Cleotis, were standing outside the yard. Defendant’s brother was arrested for possession of heroin.
Thereafter, Officer Townsend and the other officers searched inside defendant’s house. At some point, Officer Townsend noticed that defendant exhibited symptoms of possibly being under the influence of heroin. When the officer asked defendant where his “kit” (a container that holds essentials for drug use) was located, defendant moved his head in the direction of the bedroom; defendant then stated that the kit was on top of the television. On top of the television, Officer Townsend found a syringe and a metal bottle cap that contained a brown liquid substance. Officer Turner conducted a field test on the liquid; it tested positive for heroin. Officer Townsend also determined that the liquid was a useable amount. The officer arrested defendant. Defendant was transported to the police station.
The brown liquid substance was again tested; it contained .25 millimeters of heroin.
At the station, defendant was advised of his constitutional rights. Defendant agreed to talk to Officer Townsend. Defendant admitted that the items found on top of the television—the heroin and the syringe—were his. He stated that he had injected heroin about one hour prior to having been contacted by the officers, and he was just about to use the drugs again before the officers had contacted him.
Officer Townsend also conducted an evaluation to determine whether defendant was under the influence of a controlled substance. The results of the various tests led the officer to believe that defendant was under the influence of heroin. A blood sample was taken from defendant. It tested positive for the presence of opiates; heroin is an opiate.
II
DEFENDANT’S SENTENCE DOES NOT CONSTITUTE CRUEL AND/OR UNUSUAL PUNISHMENT
Defendant contends his sentence of 25 years to life for count 1, possession of .25 millimeters of heroin, constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution, and cruel or unusual punishment under article I, section 17 of the California Constitution.
The People respond that defendant waived his claim by failing to assert it in the trial court. Several published decisions have found waiver of a criminal defendant’s claim of cruel and/or unusual punishment. (E.g., People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27 (DeJesus).) In each case, however, the court went on to address the claim. Moreover, Kelley simply cited DeJesus, without any substantive discussion of the waiver issue. However, DeJesus is questionable authority for a blanket rule of waiver of cruel and/or unusual punishment claims.
First, the specific question in DeJesus was whether the trial court should have considered its discretion under People v. Dillon (1983) 34 Cal.3d 441 (Dillon) to reduce a conviction of first degree murder based on cruel and unusual punishment. DeJesus reasoned that “ . . . Dillon makes clear that its holding was premised on the unique facts of that case. [Citation.] Since the determination of the applicability of Dillon in a particular case is fact specific, the issue must be raised in the trial court.” (DeJesus, supra, 38 Cal.App.4th at p. 27.) In contrast, where the issue is merely whether a sentence is cruel and/or unusual punishment, there normally are no “fact specific” issues. Rather, “‘[w]hether a punishment is cruel or unusual is a question of law for the appellate court . . . .’” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.)
Second, the Supreme Court has stated with respect to sentencing claims: “In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (People v. Scott (1994) 9 Cal.4th 331, 354, italics added.) It is at least arguable that a sentence that constitutes cruel and/or unusual punishment is not one “otherwise permitted by law,” but simply imposed in a procedurally or factually flawed manner. DeJesus did not consider that question.
Finally, as DeJesus itself recognized, it is appropriate to consider even an issue that has been waived “in order to ‘forestall a subsequent claim of ineffectiveness of counsel’” for failure to raise the issue. (DeJesus, supra, 38 Cal.App.4th at p. 27.) For these reasons, we elect to consider defendant’s contention.
A sentence may constitute cruel or unusual punishment under the state 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.’” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) In analyzing a disproportionality claim under the state Constitution, we examine (1) “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (Lynch, at p. 425), (2) the sentence compared to the sentences for more serious offenses in California (id. at p. 426), and (3) the sentence compared to sentences for the same offense in other states (id. at p. 427). (See also Dillon, supra, 34 Cal.3d at p. 479.)
“This three-pronged analysis provides guidelines for determining whether a punishment is cruel or unusual. The importance of each prong depends on the facts of each case. An examination of the first prong alone can result in a finding of cruel or unusual punishment. [Citations.] Regarding the other prongs, defendant bears the burden of proof. [Citation.]” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)
The California Supreme Court has also held that, provided a punishment is proportionate to the defendant’s individual culpability, there is no requirement it be proportionate to the punishments imposed in other similar cases. (People v. Webb (1993) 6 Cal.4th 494, 536; People v. Mincey (1992) 2 Cal.4th 408, 476; People v. Miller (1990) 50 Cal.3d 954, 1010.) In other words, a determination of whether a punishment violates the state constitutional prohibition against cruel and unusual punishment may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; see, e.g., Dillon, supra, 34 Cal.3d at pp. 479, 482-488; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
Defendant asserts that his sentence is disproportionate because his “actions did not result in any physical injury to any member of society or damage to any property,” and “[n]o sophistication or planning was involved in the crime.” Defendant’s argument, however, discounts or ignores the precise circumstance or characteristic that triggers punishment under the three strikes sentencing scheme: his recidivism. Here, defendant has an extensive criminal history, which dates back to 1977. The following is a summary of defendant’s criminal history:
(1) In October 1977, defendant was convicted of violating Penal Code sections 484, 488, and 496, and placed on 12 months’ probation.
(2) In December 1977, defendant was convicted of violating Penal Code section 12031 and placed on 24 months’ probation. In July 1980, defendant was convicted of violating Penal Code sections 211 and 12022, subdivision (a), and sentenced to four years in state prison. He was paroled in November 1982; he violated his parole in June 1983. He was paroled again in August 1983; he violated his parole in June 1984. He was discharged in September 1984.
(3) In December 1983, defendant was convicted of violating Health and Safety Code section 11350, subdivision (b), and sentenced to 24 days in jail and probation.
(4) In June 1984, defendant was convicted of violating Penal Code sections 484, 488, and 148.9, and sentenced to six months in jail and probation.
(5) In January 1985, defendant was convicted of violating Penal Code section 459 and sentenced to two years in state prison. He was paroled in January 1986; he violated parole in August 1986. He was paroled in January 1988; he violated parole in October 1988. He was discharged in March 1989.
(6) In October 1988, defendant was convicted of violating Penal Code section 664 and Health and Safety Code section 11350, and sentenced to eight months in state prison. He was paroled in March 1989; he violated parole in September 1989. He again was paroled in December 1989; he violated parole in July 1990. He was paroled for a third time in October 1990. He was discharged in December 1990.
(7) In October 1990, defendant was convicted of violating Health and Safety Code section 11350, and sentenced to 16 months in state prison. He was paroled in April 1991; he violated parole in March 1992. He was paroled again in May 1992; he violated parole in August 1993. He was discharged in March 1998.
(8) In August 1993, defendant was convicted of violating Penal Code sections 459 and 667.5, subdivision (b), and sentenced to 17 years in state prison. He was paroled in December 2002; he violated parole in December 2003. He was reinstated on parole effective February 2004; he violated parole in June 2005. He returned to prison for seven months.
Given his criminal history and the current crime, we cannot say defendant’s sentence of 25 years to life was disproportionate to the offense or the offender. Therefore, we need not compare that sentence to sentences imposed in California for more serious offenses or in other jurisdictions for the same offense. However, we nevertheless do so out of an abundance of caution.
Defendant compares his three strikes sentence with that imposed for second degree murder, voluntary manslaughter, rape, sexual assault, mayhem, and others. The comparison is inapt and repeatedly has been rejected. “[P]roportionality assumes a basis for comparison. When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible. The seriousness of the threat a particular offense poses to society is not solely dependent on whether it involves physical injury. Consequently, the commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 826.)
Finally, with respect to sentences for the same offense in other jurisdictions, “California’s scheme is part of a nationwide pattern of statutes calling for severe punishments for recidivist offenders. [Citation.]” (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.) “That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’ [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516, quoting People v. Wingo (1975) 14 Cal.3d 169, 179.)
Defendant also contends that his sentence violates the federal constitutional prohibition against cruel and unusual punishment. We again disagree. A majority of the United States Supreme Court held in Ewing v. California (2003) 538 U.S. 11 (plur. opn. of O’Connor, J.) (Ewing) that the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. The court held the Eighth Amendment did not prohibit a sentence under California’s three strikes law of 25 years to life for a defendant who shoplifted golf clubs worth about $1,200 because seven years earlier the defendant had been convicted of three residential burglaries and one first degree robbery. (Ewing, at pp. 17-18, 29-30.)
Comparing defendant’s current crime and his criminal history with those of the defendant in Ewing, we cannot say that defendant’s sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment under the United States Constitution.
The opinion further stated that “‘[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.’ [Citation.]” (Ewing, supra, 538 U.S. at p. 21 (plur. opn. of O’Connor, J.); see also Lockyer v. Andrade (2003) 538 U.S. 63, 73 [gross disproportionality principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case”].) As an example of a successful challenge, the court stated that the proportionality principle would come into play “‘if a legislature made overtime parking a felony punishable by life imprisonment . . . .’” (Ewing, at p. 21.)
Two other justices in Ewing concurred in the result on the basis that the Eighth Amendment does not contain any proportionality guarantee at all. (Ewing, supra, 538 U.S. at pp. 31 (conc. opn. of Scalia, J.), 32 (conc. opn. of Thomas, J.).)
Ewing and Andrade are the Supreme Court’s most recent pronouncements on the application of the cruel and unusual punishment clause to state court sentences. Neither decision required that, if the reviewing court concludes a sentence is not grossly disproportionate to the crime, it nevertheless must compare the sentence to the sentences for other crimes in the same jurisdiction, or for the same crime in other jurisdictions.
Therefore, it appears that under the Supreme Court’s most current interpretation, all that is required under the Eighth Amendment is the equivalent of the analysis that makes up the first part of the Lynch test. (But see People v. Carmony, supra,127 Cal.App.4th at p. 1077 [applying three-part analysis under Eighth Amendment].) As we have already found no cruel or unusual punishment under that analysis, we hold for the reasons previously stated that defendant’s sentence also did not violate the Eighth Amendment.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., KING, J.