Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F112
CANTIL-SAKAUYE, J.
Pursuant to a negotiated agreement, defendant James Richard Murphy pled guilty to one count of failing to register as a sex offender (Pen. Code, § 290, subd. (b), former subd. (a)(1)(A)) and admitted two prior serious felony convictions (§ 1170.12) for section 288, subdivision (a) in exchange for dismissal of other charges with a Harvey waiver and the promise of the court’s consideration of his Romero motion to strike the prior serious felony convictions. The trial court denied his Romero motion and sentenced him to 25 years to life in state prison.
Hereafter, undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, defendant contends denial of his Romero motion was an abuse of discretion, and that application of California’s Three Strikes law constituted cruel and unusual punishment under the Eighth Amendment. We will affirm the judgment.
FACTUAL BACKGROUND
While conducting compliance checks of section 290 sex offender registrants, police learned defendant was no longer living at the address he had last registered in December 2006.
DISCUSSION
I. Denial of Romero Motion
Defendant contends the trial court abused its discretion by denying his Romero motion. We disagree.
Section 1385, subdivision (a), provides that a court may “in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) This statute authorizes a court to strike, for purposes of sentencing, a finding that a defendant has had a prior serious felony conviction within the meaning of the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 504.)
In order to strike a defendant’s prior conviction for purposes of sentencing, 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 (Williams); People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
A court’s “failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (Carmony, supra, 33 Cal.4th at p. 374.) As our Supreme Court further clarified: “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 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.” (Id. at pp. 376-377.) On a silent record, we presume that the trial court understood and properly exercised its discretion. (Id. at p. 378.)
Here, the trial court heard oral argument from counsel regarding the nature and extent of defendant’s criminal history, his long-term addiction to methamphetamine, his efforts to find a drug rehabilitation program once he was incarcerated, his performance on probation and parole, and his prior failure to register as a sex offender. The court also read and considered the probation report. As evidenced in that report, defendant’s criminal history began with a misdemeanor in 1985, and a conviction a year later for residential burglary. In 1992, defendant was convicted of molesting his two 7-year-old stepdaughters, for which he was placed on probation and ordered to serve 360 days in county jail. In 1997, at the age of 38, defendant was convicted of statutory rape (§ 261.5) after having intercourse with a victim who was, at most, 16 years of age. That victim later became his wife. Defendant was also convicted at that time of failing to register as a sex offender. (§ 290.) He admitted his 1997 failure to register was not the result of his addiction to methamphetamine, but rather “just something [he] neglected to do.”
Defendant was paroled from state prison in July 2000, but returned on a parole violation in June 2001, to serve a 12-month term. He was paroled again in June 2002, but returned again in October 2002 after testing positive for drugs. Defendant served nine months and was paroled in April 2003, but was returned to prison to serve another seven-month term in December 2003 after again testing positive for drugs. Defendant was eventually discharged from parole in July 2004.
As the trial court noted, the present felony was not merely a technical one. Defendant readily admitted he knew he was required to register and chose not to do so. Indeed, defendant made the same choice in 1997 with similar results. However, this time he was also found to be in possession of a small amount of methamphetamine. That, and the fact that at least two of his previous parole violations were drug-related, evidences a pervasive substance abuse problem for which defendant has not sought timely help or rehabilitation.
Conceding the two molestation convictions “are disturbing,” defendant nonetheless argues the crimes were “relatively minor” as evidenced by the misdemeanor-like sentence imposed, and were committed during one course of continuous conduct which occurred over 16 years ago. The trial court disagreed, noting the two prior strikes “are among the most egregious... against very young and vulnerable victims, who were in a position of trust with the defendant.” The court acknowledged the crimes were 16 years old, but viewed them in conjunction with defendant’s subsequent criminal history, noting the failure to register in 1997, the statutory rape conviction in 1997 and the three subsequent parole violations.
Defendant concludes, with little factual support or analysis, that the trial court “relied on the wrong standard in exercising its discretion, in light of its apparent belief that 25 years to life was an excessive sentence under the circumstances of the instant case.” While the court did indeed comment that it was in the position of having to “choose... between six years in state prison, or 25 years to life in state prison,” and noted that “[i]t would be nice if there was something in between available,” nothing in the record suggests the court either misunderstood the applicable standard or that it found a 25-years-to-life sentence to be excessive. We reject defendant’s argument in that regard.
Defendant further contends the court erred by focusing on his “relatively insignificant” criminal history alone without giving any “measurable consideration” to other relevant factors, including the fact that (1) defendant admitted guilt early in the proceedings, (2) defendant made “several attempts” to seek drug rehabilitation prior to his arrest, (3) defendant had been compliant with the registration requirement “since 2006,” and (4) the crime of failing to register as a sex offender is neither serious nor violent. Not so. Each of those issues was addressed in the probation report or in defendant’s motion, or was argued by counsel at the hearing. As such, we presume the court gave them due consideration. The court also found greatly significant the fact that defendant apparently learned little from his 1997 failure to register, concluding defendant did not fall outside the spirit of the Three Strikes law. Under these circumstances, the trial court’s refusal to strike either of defendant’s prior strike convictions was not “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)
II. Cruel and Unusual Punishment
Defendant contends his sentence of 25 years to life in prison for failing to register as a sex offender constitutes cruel and unusual punishment under the United States Constitution and cruel or unusual punishment under the California Constitution. Any failure to raise the issue below, he argues, is the result of ineffective assistance of counsel. Respondent argues the claim should be dismissed because defendant failed to obtain a certificate of probable cause and, in any event, the claim lacks merit.
Defendant’s reply brief calls attention to our order, filed November 13, 2008, informing defendant a certificate of probable cause was not required to raise the claims raised in this appeal. Just four days later, on November 17, 2008, we filed our decision in People v. Rushing (2008) 168 Cal.App.4th 354 (Rushing), holding constitutional contentions such as defendant’s claim of cruel and unusual punishment are not cognizable on appeal without a certificate of probable cause. (Id. at pp. 357-358, 362.) In the interest of judicial economy, we consider defendant’s claim on the merits in the absence of a certificate of probable cause. Assuming defendant’s contention is not forfeited for failure to raise it in the trial court (see Williams, supra, 17 Cal.4th at pp. 161-162, fn. 6; People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5; but see People v. Norman (2003) 109 Cal.App.4th 221, 229 ; People v. DeJesus (1995) 38 Cal.App.4th 1, 27), it fails on the merits.
Under the proscription of “cruel and unusual punishment” in the Eighth Amendment to the United States Constitution (applicable to the states via the Fourteenth Amendment), a “‘narrow proportionality principle’... ‘applies to noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117] (Ewing), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [115 L.Ed.2d 836, 865-866] (Harmelin).) This constitutional principle “‘forbids only extreme sentences that are “grossly disproportionate” to the crime.’” (Ewing, supra, at p. 23 [155 L.Ed.2d at p. 119], quoting Harmelin, supra, at p. 1001 [115 L.Ed.2d at p. 869].)
Objective factors guiding the proportionality analysis include “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” (Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650].) But only in the rare case where the first factor is satisfied does a reviewing court consider the other two factors. (Harmelin, supra, 501 U.S. at p. 1005 (conc. opn. of Kennedy, J.).)
The United States Supreme Court rejected an Eighth Amendment challenge to a 25-years-to-life Three Strikes sentence in Ewing, supra, 538 U.S. 11 [155 L.Ed.2d 108], noting that recidivism has traditionally been recognized as a proper ground for increased punishment. (Id. at p. 25 [155 L.Ed.2d at p. 120].) Given the defendant’s long criminal history, the court held that the defendant’s punishment was not disproportionate despite the relatively minor character of his current felony. (Id. at p. 29 [155 L.Ed.2d at p. 122].)
Likewise here, defendant’s criminality began back in 1982 and was relatively consistent thereafter, interrupted on occasion by periods of incarceration. What began with a misdemeanor grew into several serious felonies and violations of parole fueled, at least in part, by an addiction to methamphetamine. While it is true defendant’s current offense is “nonviolent” as he suggests, it is the second of two knowing and willful refusals to register. We disagree with defendant’s characterization that his failure to register presents “a low degree of danger to society.” We note the statute’s purpose is to promote public safety and to prevent sex offender recidivism by assuring that those convicted of crimes committed due to sexual compulsion or for sexual gratification “‘shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527; People v. McClellan (1993) 6 Cal.4th 367, 376, fn. 7.) Defendant’s failure to register renders it impossible for police to promote public safety as contemplated by the statute. His punishment was not grossly disproportionate in light of his long criminal record. (See People v. Poslof (2005) 126 Cal.App.4th 92, 109; People v. Meeks (2004) 123 Cal.App.4th 695, 706-710.)
Similarly, article I, section 17 of the California Constitution proscribes “cruel or unusual punishment.” Although this language is construed separately from the federal constitutional ban on “cruel and unusual punishment” (Carmony, supra, 127 Cal.App.4th at p. 1085), the method of analysis is similar: the reviewing court considers “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society”; the comparison of “the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses”; and the comparison of “the challenged penalty with the punishments prescribed for the same offense in other jurisdictions....” (In re Lynch (1972) 8 Cal.3d 410, 425-427.) The purpose of this analysis is to determine whether the punishment is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (Id. at p. 424, fn. omitted.)
We do not find that this is one of those rare cases where the sentence is so disproportionately harsh as to shock the conscience or to offend fundamental notions of human dignity. (See People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.) As previously discussed in this opinion, defendant’s past and present offenses are grave and his addiction to methamphetamine only exacerbates each circumstance. That, in conjunction with his repeated knowing and willful failure to register, suggests that freeing him would endanger society. His punishment is not disproportionate to that imposed on other recidivists under the Three Strikes law, including those whose present offense, like defendant’s, is not a “serious” or “violent” felony under that law. (See, e.g., People v. Poslof, supra, 126 Cal.App.4th at p. 109; People v. Meeks, supra, 123 Cal.App.4th at pp. 706-710.)
Defendant cites numerous cases in support of his argument that the punishment in other states for failing to register and the punishment imposed for “more serious” crimes committed in California shows his sentence is grossly disproportionate. Those arguments are unpersuasive. Due to his 1992 convictions for committing lewd and lascivious acts against his two 7-year-old stepdaughters, defendant was required to register as a sex offender. He knowingly and willfully failed to do so. Five years later, he was convicted of committing another sex offense against a minor and failing to register. He, himself, admitted he knew he was supposed to but just did not do it. As the trial court noted, he was, at that time, given a valuable opportunity when he was sentenced to just four years in state prison. Despite that opportunity, defendant went on to violate probation or parole three times, testing positive for methamphetamine twice. Since then, defendant has done little, if anything, to address his drug addiction and, in 2007, once again elected not to comply with the registration requirement. In any event, the interjurisdictional test does not require proof that California’s sentencing scheme as to recidivists is less harsh than others. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
Defendant has not shown that his punishment was “cruel and unusual” under the federal Constitution, or “cruel or unusual” under the California Constitution.
DISPOSITION
The judgment is affirmed.
We concur: SIMS , Acting P. J., NICHOLSON , J.