Opinion
E064396
07-06-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ELLIOTT NICHOLAS, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF029543) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed as modified with directions. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant David Elliott Nicholas approached a woman getting into her car in a parking lot, put an object against her back, and took her car key. Defendant then pushed the victim to the ground as he attempted to get into her car before he was chased away by a bystander. Defendant had prior strike convictions for armed robbery and second degree murder.
Following a jury trial, defendant was found guilty of attempted carjacking (Pen. Code, §§ 664/215, subd. (a)). In a bifurcated proceeding, the trial court found true that defendant had sustained two prior serious felony convictions (§ 667, subd. (a)) and two prior strike convictions (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). Defendant waived his right to a jury trial on the issue of sanity, and the trial court found defendant was sane at the time he committed the offense. After the trial court denied defendant's motion to dismiss one of his prior strike convictions, defendant was sentenced to a total term of 35 years to life in state prison with credit for time served as follows: an indeterminate term of 25 years to life for the attempted carjacking plus a determinate term of 10 years for the two prior serious felony convictions. This appeal followed.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends: (1) the trial court abused its discretion in declining to strike one of his two prior strike convictions; (2) his sentence of 35 years to life constitutes cruel and unusual punishment under the state and federal Constitutions; (3) the abstract of judgment must be corrected to include all of the credit for time served defendant was awarded at the time of the sentencing hearing; and (4) the $300 restitution fine must be reduced to $200, the applicable statutory minimum at the time of defendant's offense. We agree with the parties that the abstract of judgment must be corrected and that the restitution fine must be reduced to $200. We, however, reject defendant's remaining contentions and affirm the judgment as modified.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On December 3, 2009, around 10:00 a.m., Shirley N. went to a grocery store in Temecula. After purchasing groceries, Shirley pushed a shopping cart of groceries back to her parked car, and started putting the grocery bags into the trunk of her car. As she did so, defendant approached her and said, " 'You have a very nice car.' " Defendant asked her the year and model of the car, and Shirley responded. As Shirley opened the driver's door to get into her car, she felt defendant put something small and sharp against her back and he said, " 'This is [a] carjacking.' " Shirley immediately handed her car keys to defendant over her right shoulder. Defendant took her car keys, and Shirley attempted to keep defendant from getting into her car. Defendant responded by pushing Shirley to the ground.
As defendant got into her car, Shirley screamed for help. She also exclaimed that defendant was taking her car. Arlene M., who was about 10 feet away, saw defendant push Shirley to the ground and heard Shirley yelling for help. Arlene ran over to Shirley, yelling for help. Defendant, who was halfway into the car, threw the car key down on the ground and ran away. Shirley told Arlene that defendant tried to take her car, and Arlene said she was going to call 911 and chase after defendant.
While following defendant in her car, Arlene called 911. She saw defendant take his green jacket off and throw it on the ground. She then observed defendant proceed to the shopping mall across the street. In the shopping mall parking lot, Arlene saw deputies detaining the wrong person. Arlene called to the officers and told them that they had the wrong person and to follow her. Arlene continued to pursue defendant through the parking lot, and pulled her car to a stop in front of him. Arlene pointed defendant out to the deputies and the deputies apprehended defendant.
Other deputies arrived at Shirley's car, and eventually took Shirley to the location where defendant had been apprehended where she made an infield identification of defendant. She, however, noted that defendant was not wearing the green jacket he had been wearing earlier. Deputies recovered a green jacket near the location where Arlene had observed defendant throw his jacket.
Riverside County Sheriff's Deputy Coleman interviewed defendant. Defendant told Deputy Coleman that he did not do anything wrong. Defendant also stated that he had asked Shirley for money so that he could take the bus to Hemet to go to the Social Security office to "check on his money." Defendant further asserted that Shirley had "freaked out" because he asked her for money, then she fell to the ground and began yelling for no reason. When Deputy Coleman asked why defendant had discarded his jacket, defendant replied that he did not have a jacket. Based on his training and experience, Deputy Coleman believed defendant did not appear to show signs of mental illness or being under the influence of a drug.
Defendant's mother claimed that the only time she had known defendant to drive a vehicle was in 1984 or 1985, at which time he had crashed the car. She had never taught defendant how to drive, and she was not aware whether or not defendant had a driver's license. Defendant's stepbrother stated that he had tried to teach defendant how to drive in the past, and defendant was unable to learn because of his poor motor skills. Defendant did not appear to have a driver's license.
B. Procedural Background
On December 7, 2009, a felony complaint was filed charging defendant with attempted carjacking (§§ 664/215, subd. (a)). The complaint further alleged that defendant had previously been convicted of a serious felony (§ 667, subd. (a)) and a serious and violent strike offense (§§ 667, subds (c) & (e)(1), 1170.12, subd. (c)(1)).
On January 6, 2010, the trial court declared a doubt as to defendant's mental competence and granted defense counsel's section 1368 motion. The court thereafter suspended the criminal proceedings and ordered psychological evaluations of defendant.
On July 16, 2010, after receiving conflicting recommendations from the psychological evaluators, the parties stipulated to the psychological evaluations. The trial court found defendant mentally incompetent and referred the matter to the county mental health department for a recommendation regarding placement.
On August 13, 2010, based on the Department of Behavioral Health's recommendation, the trial court ordered defendant to be committed to Patton State Hospital under section 1370 to receive further treatment as necessary to restore him to competency.
On April 8, 2013, the trial court found defendant competent to stand trial and reinstated criminal proceedings under section 1372. On that same date, the People filed an amended felony complaint.
Following a preliminary hearing, on July 8, 2013, an information was filed charging defendant with attempted carjacking (§§ 664/215, subd. (a)). The information further alleged that defendant had previously been convicted of two serious felonies (§ 667, subd. (a)) and two serious and violent strike offenses, to wit, a 1983 robbery and a 1989 second degree murder (§§ 667, subds (c) & (e)(2)(a), 1170.12, subd. (c)(2)(a)).
On May 12, 2015, a jury found defendant guilty of attempted carjacking. The following day, on May 13, 2015, in a bifurcated proceeding, the trial court found true that defendant had sustained two prior serious felonies and two prior strike convictions.
C. Sanity Phase
Defendant waived his right to a jury trial on whether he was sane at the time of the incident. Both parties stipulated to a total of four psychologists' evaluations and a set of exhibits. Two psychologists concluded defendant was sane at the time of the offense based on his actions during the incident. And, two psychologists concluded defendant was not sane at the time of the offense, noting defendant suffers chronically from a psychotic disorder.
Defendant's mother testified, in relevant part, that defendant had a tumultuous childhood. After being physically abused by his stepfather, defendant was removed from her custody before he was eight years old and placed in foster care. While in foster care, records indicate that defendant was sexually abused by peers and at least one counselor. In 1989, defendant was convicted of second degree murder in Florida. In a subsequent incident, he believed people were after him and trying to kill him, and used an ax to destroy property and attempted to gain entry into an apartment. On June 11, 1999, defendant was found not guilty by reason of insanity and spent eight years in two separate mental institutions in Florida. Defendant was conditionally released to his stepbrother and mother in 2002. Defendant was diagnosed with schizophrenia affective disorder, bipolar type, polysubstance dependence, and dependent personality disorder, and prescribed antipsychotic medications. Defendant's mental condition began to deteriorate in 2009 after his sister was diagnosed with brain cancer and his mother was unable to assist defendant.
Following testimony, argument from counsel, and consideration of the documentary evidence, on July 15, 2015, the trial court found defendant was sane at the time he committed the offense.
D. Sentencing
The sentencing hearing was held on August 12, 2015. At that time, the trial court indicated it had read and considered the probation officer's report and attachments, a character letter from defendant's godmother, defendant's motion to strike his prior strike convictions and attachments, the prosecution's opposition to defendant's motion to strike, and the parties' sentencing memoranda.
Defense counsel argued that the trial court should grant defendant's motion to strike one or both of his prior strike convictions based on the factors outlined in People v. Williams (1998) 17 Cal.4th 148, 161 (Williams). Counsel pointed out that the current crime and physical injury to the victim were minor and occurred when defendant was off his medication and that defendant had a long history with mental illness and suffered physical abuse at a very early age. Counsel also noted that defendant had moved around from "foster care to foster care" and that when he went to live with his dad he was introduced to all kinds of drugs and was eventually homeless and began prostituting himself for food and shelter. Counsel further asserted that defendant would not be a danger to the community because he can manage his mental illness with medication. Counsel argued that defendant's prior offenses were remote, noting his robbery offense was committed in 1983 and his second degree murder offense was committed in 1989, and that for three years from 2006 to 2009, defendant did well until his sister's medical diagnosis.
After hearing arguments from the People and statements from the victim, defendant's family, and defendant, the trial court noted the factors it must consider and the ultimate spirit of the "Three Strikes" law of protecting the public. The court concluded the circumstances of the current offense were not minor, finding that defendant used violent force to throw the victim to the ground during the carjacking. The court also noted that defendant had a history of violence, resulting in a prior robbery conviction and a prior murder conviction. The court further found that, other than the periods defendant was in custody or committed to an institution, there was no significant break in time in which he was not committing a violent or theft-related offense.
Regarding defendant's character and prospects, the court acknowledged that defendant had a very difficult life and continued to suffer from chronic mental health issues. However, the court concluded that defendant's history showed that if left on his own, there was nothing to suggest defendant would adhere to a medication regimen to reduce the prospect of reoffending. The court also determined that defendant's prior offenses and current offense involved acts of violence and that he fell squarely within the spirit of the Three Strikes law. Based on its findings, the court denied defendant's motion to strike his prior strike convictions and sentenced defendant to a total term of 35 years to life in state prison.
III
DISCUSSION
A. Denial of Motion to Strike Priors
Defendant argues the trial court erred in denying his motion to strike one of his two prior strike convictions. He contends the trial court's ruling was an abuse of discretion because he has a long history of mental illness, he had an abusive childhood, his strike convictions were remote in time, and his current crime was less serious than in other similar cases.
Section 1385, subdivision (a), gives a trial court discretion to dismiss a prior felony conviction "in furtherance of justice." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero); see People v. Clancey (2013) 56 Cal.4th 562, 582.) In deciding whether to dismiss prior conviction allegations, 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." (Williams, supra, 17 Cal.4th at p. 161; accord, People v. Vargas (2014) 59 Cal.4th 635, 641 (Vargas).)
We review a trial court's refusal to strike prior conviction allegations for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) "[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 p. 377.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Id. at p. 378; accord, In re Large (2007) 41 Cal.4th 538, 550-551.) " '[I]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.]" (Carmony, at p. 378.) " '[B]ecause the circumstances must be "extraordinary . . . by which a career criminal can be deemed to fall 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" [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.' [Citation.]" (Vargas, supra, 59 Cal.4th at p. 641.) Where the trial court, aware of its discretion, " 'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' " (Carmony, at p. 378.)
" 'In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not "aware of its discretion" to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].' " (People v. Philpot (2004) 122 Cal.App.4th 893, 905 (Philpot), quoting Carmony, supra, 33 Cal.4th at p. 378.) "Discretion is also abused when the trial court's decision to strike or not to strike a prior is not in conformity with the 'spirit' of the law. [Citations]." (Philpot, at p. 905.)
Defendant argues that the trial court abused its discretion in denying his Romero motion because of his mental illness and background, the remoteness of the strike convictions other than several misdemeanor convictions, and the minor nature of his current crime where the victim had suffered only minor injuries. The trial court examined defendant's strike convictions along with his mental illness, background, criminal history, prospects for the future, and the nature and circumstances of his current offense. The relevant considerations supported the trial court's ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider the relevant factors. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams. The court noted that while defendant's prior violent strike convictions were remote, the record nevertheless established defendant was a recidivist offender with no "significant break in time where he wasn't committing violent offenses or even theft-related offenses" "other than the times that he [was] essentially [] under direct control in an institution." The record also demonstrates that defendant had violated parole on three separate occasions and that defendant had poor prospects for the future.
Under these circumstances, the trial court did not abuse its discretion in denying defendant's motion to dismiss one of his prior strike convictions, even though his prior strike convictions were 26 and 20 years old. (See Williams, supra, 17 Cal.4th at pp. 162-164 [trial court abused its discretion by striking 13-year-old prior strike where there was little or nothing favorable in the defendant's background, record, character, or prospects]; People v. Pearson (2008) 165 Cal.App.4th 740, 749 ["argument that [prior] convictions are remote in time is without merit where, as here, the defendant has led a continuous life of crime"]; People v. Strong (2001) 87 Cal.App.4th 328, 338 ["the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career"]; People v. Gaston (1999) 74 Cal.App.4th 310, 320 (Gaston) [trial court abused its discretion in striking 17-year-old prior strike in light of the defendant's "unrelenting record of recidivism, even while on parole or probation from previous felony convictions"]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 (Humphrey) [the court stated that "[i]n determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on"].) Finding that a prior conviction has " 'washed out' " requires "a crime-free cleansing period of rehabilitation," but where defendant shows "a continuous life of crime after the prior, . . . there is simply nothing mitigating about a 20-year-old prior." (Humphrey, at p. 813.)
In the present matter, the trial court was aware of its discretion and factors it must analyze to dismiss defendant's prior strike convictions. The trial court considered the record and determined defendant did not fall outside the three strikes scheme. Defendant's disagreement with how the trial court weighed the factors does not show the court abused its discretion. The court acknowledged that defendant had a very difficult life and continued to suffer from chronic mental health issues. However, the trial court concluded that defendant's history showed that if left on his own, there was nothing to suggest that defendant would adhere to a medication regimen to reduce the prospect of reoffending. Additionally, the probation report noted that although defendant reported a history of substance abuse that he believed could be attributed to "self-medicating" due to his mental illness, defendant had never sought or participated in substance abuse treatment. (See Gaston, supra, 74 Cal.App.4th at p. 322 ["the record is barren of any attempts by [the defendant] to 'root out' such destructive drug dependency"].) Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant's prospects for the future look no better than the past, in light of defendant's record of prior offense and reoffense and his underlying mental illness and drug addiction. We conclude the trial court did not abuse its discretion in determining defendant fell within the spirit of the Three Strikes law.
Under the circumstances, the trial court's decision was not so irrational or arbitrary that no reasonable person could agree with it. On this record, where the trial court considered the relevant criteria, including the serious and violent nature of defendant's prior strike convictions and the present offense, as well as defendant's additional criminal history, and defendant's background, character, and prospect of reoffending, we find no abuse of discretion in the trial court's refusal to strike one of defendant's prior strike convictions.
B. Cruel and Unusual Punishment
Defendant argues his 35-year-to-life sentence for attempted carjacking constitutes cruel and unusual punishment under both the state and federal Constitutions in that his prior and current offenses were related to his serious mental illness, drug addiction, and abusive childhood. We disagree.
"Under the three strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses." (People v. Cooper (1996) 43 Cal.App.4th 815, 823-824 (Cooper), citing Rummel v. Estelle (1980) 445 U.S. 263, 284 (Rummel).) "California statutes imposing more severe punishment on habitual criminals have long withstood constitutional challenge." (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137; accord Cooper, at pp. 820, 825-828 [25 years to life for a third strike offender convicted of being a felon in possession of a firearm was not disproportionate].)
"[I]n California a punishment may violate [California Constitution, article I, section 17] if, although not cruel or unusual in its method, 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. Caddick (1984) 160 Cal.App.3d 46, 51-52.) To determine whether a sentence is cruel and unusual, we (1) examine the nature of the offense and the offender, (2) compare the sentence with punishments for more serious offenses in the same jurisdiction, and (3) compare the sentence with punishments for the same offense in other jurisdictions. (Id. at pp. 425-427.)
"In examining 'the nature of the offense and the offender,' we must consider not only the offense as defined by the Legislature but also 'the facts of the crime in question' (including its motive, its manner of commission, the extent of the defendant's involvement, and the consequences of his acts); we must also consider the defendant's individual culpability in light of his age, prior criminality, personal characteristics, and state of mind." (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)
In this case, defendant, 48 years old at the time of the current offense, had committed offenses since he was 18. His criminal history includes a series of misdemeanor convictions for prostitution, carrying a prohibited weapon, and carrying a concealed weapon in 1979 and 1980. In 1983, he was convicted of robbery with a deadly weapon and sentenced to prison. He was also convicted of felony drug possession. In 1989, soon after he was released from prison, defendant committed second degree murder in Florida. He was released from prison in 1997, and he committed another misdemeanor in Florida two years later. Defendant has committed a number of offenses, including serious and violent ones. Over the course of 30 years, he has been placed on probation on numerous occasions, sentenced to over 12 years in prison, and admitted to mental institutions to combat his mental illness, yet he continued to commit crimes. Defendant's prior offenses of armed robbery and second degree murder are violent offenses. So is his current offense of attempted carjacking.
Defendant claimed that his current offense was the result of his mental illness and that he had no recollection of what had happened. Nonetheless, immediately afterwards defendant stated that he had approached the victim to ask for money and that she then "freaked out" and fell on the ground for no reason. Furthermore, the trial court stated the following in finding defendant sane at the time he committed the current offense: "As soon as the defendant's apprehended, he gives a very coherent, very logical statement to the deputy. He mentions nothing of blanking out, nothing of delusions, nothing of feeling paranoid, people were after him, nothing about needing to escape these people because they are trying to steal his money because he's a millionaire, nothing of that sort. Defendant gives an explanation grounded in reality. His reality being that he believed he did nothing wrong because all he was doing was asking the lady for some money so he can catch a bus to go to Hemet to pick up his . . . SSI check. That's an important fact, because from the records . . . he was, in fact, an SSI recipient. So there's some logic to his thought process at that time . . . He described the event. Lady freaked out, threw herself on the ground when he asked her for money. In no way can that be a product of delusion but rather it was his way to spin the events in a way that made him look innocent of any wrongdoing."
Defendant argues on appeal that his culpability must be addressed in relation to his mental illness. However, defendant received care for his mental illness and his mental illness was stabilized as the result of medication. Defendant stated he did not seek treatment for mental health issues until 1998, and that he did well while taking his medication. However, if left to his own care, the voices in his head tell him that he is cured and does not need medication. The trial court acknowledged that defendant had a very difficult life and continued to suffer from chronic mental health issues. The court concluded that defendant's history showed that if left on his own, there was nothing to suggest defendant would adhere to a medication regimen to reduce the prospect of reoffending. The court also found defendant continued to pose a danger to public safety. Whether or not his conduct was attributable to mental illness, defendant was not sentenced as he was here because he was mentally ill. He was sentenced to the current term because of his continued unwillingness, as opposed to inability, to conform his conduct to the law and his unwillingness to confront the reasons why he has failed to do so.
We find nothing noteworthy about defendant's offense that would lead to the conclusion that his sentence is grossly disproportionate to the crimes; the sentence does not shock the conscience or offend notions of human dignity. (Lynch, supra, 8 Cal.3d at p. 424.)
Defendant makes no claim or assertion with respect to the second and third areas of focus under Lynch, that is, he does not compare his sentence with punishments for more serious offenses committed in California (Lynch, supra, 8 Cal.3d at p. 426), nor does he compare his sentence with punishments for the same offenses in other jurisdictions (id. at p. 427). In any event, the commission of a single, even heinous, felony cannot be compared with the commission of multiple felonies. (People v. Ingram (1995) 40 Cal.App.4th 1397, 1416, overruled on another point in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.) By enacting the Three Strikes law, the Legislature has determined that commission of multiple felonies justifies a distinct and more rigorous punishment. Defendant's sentence was imposed not merely on the basis of his current offense but on the basis of his recidivist behavior.
Additionally, the court in Cooper, supra, 43 Cal.App.4th 815, addressed the comparative argument as follows: "That other jurisdictions impose shorter terms when recidivist ex-felons [reoffend] does not compel the conclusion that appellant's sentence is disproportionate to his criminal status. The assumption underlying the other-jurisdiction comparison is that the majority of those jurisdictions will have prescribed punishments for this offense that are within the constitutional limit of severity; and if the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of those jurisdictions, the disparity is a further measure of its excessiveness. [Citation.] However, as the Harmelin [v. Michigan (1991) 501 U.S. 957] court noted, the needs and concerns of a particular state may induce it to treat certain crimes or particular repeat offenders more severely than any other state. Nothing in the prohibition against cruel or unusual punishment per se disables a state from responding to changed social conditions and increasing the severity with which it treats its recidivist felons." (Cooper, supra, 43 Cal.App.4th at p. 827.) Society has exhibited an ever-increasing intolerance to habitual criminals and "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.)
Defendant's sentence does not shock the conscience nor is it disproportionate under California law.
With respect to his claim based on federal law, we can say the same. The hurdles defendant must surmount to demonstrate cruel and unusual punishment under the federal Constitution are, if anything, higher than under the state Constitution. (See generally Cooper, supra, 43 Cal.App.4th at pp. 819-824, and cases cited.) It is not the gravity of the current offense in the abstract, or even the fact-specific gravity of the current offense that is determinative. Rather, it is the fact-specific nature of the current offense considered in the light of the specifics of the perpetrator's criminal history that must be considered. (Ewing v. California (2003) 538 U.S. 11, 29-30 (Ewing).) "The Eighth Amendment [to the United States Constitution], which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' " (Id. at p. 20, quoting Harmelin v. Michigan, supra, 501 U.S. at pp. 996-997 (Harmelin).) "[T]he 'precise contours' of the proportionality principle 'are unclear,' " and the principle is "applicable only in the 'exceedingly rare' and 'extreme' case." (Lockyer v. Andrade (2003) 538 U.S. 63, 72-73.)
Ewing's application of the Eighth Amendment followed the proportionality principles identified in the concurring opinion of Justice Kennedy in Harmelin: " '[T]he primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors'—that 'inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are "grossly disproportionate" to the crime.' " (Ewing, supra, 538 U.S. at p. 23, quoting Harmelin, supra, 501 U.S. at p. 1001.)
The United States Supreme Court has upheld three strikes sentencing, even when applied to a person convicted of a nonviolent third strike. In Ewing, supra, 538 U.S. 11, the defendant had four strike prior convictions, plus a number of nonstrike priors. (Id. at pp. 18-19.) While still on parole, he stole three golf clubs, worth a total of $1,200. (Id. at pp. 17-18.) As a result, he was sentenced under California's Three Strikes law to 25 years to life. (Id. at p. 20.) The plurality held that this did not constitute cruel and unusual punishment. They explained: "When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." (Id. at p. 25.) They noted: "In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at p. 29.) The plurality concluded: "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Id. at pp. 29-30, fn. omitted.)
In Rummel, supra, 445 U.S. 263, the Supreme Court upheld a sentence under a Texas recidivist statute of life with the possibility of parole for obtaining $120.75 by false pretenses. The defendant's previous offenses consisted of fraudulent use of a credit card to obtain goods and services worth $80 and passing a forged check in the amount of $28.36. (Id. at pp. 268-286.) Here, defendant's prior offenses were much more serious than the defendant in Rummel. In addition, his current offense was violent.
Accordingly, defendant's sentence passes muster under the federal Constitution. Defendant's sentence is not grossly disproportionate to the crime and enhancements for which he is being punished. Thus, defendant's Eighth Amendment claim fails.
Because we address this issue on the merits, we need not further address defendant's alternate claim that counsel was ineffective for failing to raise the issue below. --------
C. Correction of Abstract of Judgment
Defendant contends the abstract of judgment must be corrected to include all of the presentence custody credits awarded at the time of the sentencing hearing. The People correctly concede.
At the sentencing hearing, the court pronounced, "Credits will be fixed as follows, 676 days local time, 648 days good time under 4019, plus 1403 days state hospital time, for total credits of 2727 days to be applied to the determinate portion of the defendant's sentence." The trial court's minute order of the sentencing hearing correctly reflects the presentence conduct credits awarded to defendant. The abstract of judgment, however, shows 676 actual days of custody credit plus 648 days of conduct credit for a total of 1,324 days. The abstract of judgment contravenes the trial court's oral pronouncement.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-388.) Thus, the abstract of judgment should be corrected to reflect an additional 1,403 days for time spent in the state hospital, for a total of 2,727 days of custody credit. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts have inherent power to correct clerical errors contained in abstracts of judgment that do not accurately reflect the judgment].)
D. Correction of Restitution Order
Defendant argues that the abstract of judgment should also be corrected to reflect a $200 restitution fine, rather than the $300 restitution fine imposed, because the applicable statutory minimum at the time of defendant's offense was $200 and the trial court's retroactive use of the $300 statutory minimum constitutes ex post facto punishment. He asserts that the trial court's comments indicate it intended to impose the minimum fine. In the alternative, defendant claims his counsel rendered constitutionally ineffective assistance of counsel if his claim is deemed waived on appeal.
The People concede that the minimum restitution fine under section 1202.4, subdivision (b), was $200 in 2009. The People also agree that the trial court intended to impose the minimum restitution fine, and that the abstract of judgment should be corrected to reflect the amount at the time defendant committed the offense.
Failure to object to the restitution fine at or before sentencing, including on ex post facto grounds, constitutes a forfeiture of the issue for appeal. (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189 (Martinez); People v. Villalobos (2012) 54 Cal.4th 177, 182; People v. White (1997) 55 Cal.App.4th 914, 916-917.) However, in Martinez, at pages 1189-1190, the court found ineffective assistance of counsel where defense counsel failed to object to the trial court's calculation of the restitution fine using a minimum amount that came into effect after the defendant committed the offense of which he was convicted. "On the record before us . . . it appears more than likely that the court would have imposed the restitution fund fine using the $200 minimum that was in effect when appellant committed his crimes had counsel raised an objection at the sentencing hearing. Accordingly, we conclude that trial counsel's performance was deficient." (Id. at p. 1190.)
In this case, although defendant's failure to object to the amount or manner of the fine constitutes a forfeiture of the issue on appeal, we elect to address the issue to forestall a petition for writ of habeas corpus based on a claim of ineffective assistance of counsel. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [court addresses waived issue "to forestall a petition for writ of habeas corpus based on a claim of ineffectual counsel"]; see also Williams, supra, 17 Cal.4th at p. 161-162, fn. 6 [the fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue].)
Section 1202.4, subdivision (b), provides: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§1202.4, subd. (b).)
The ex post facto clause applies to the imposition of restitution fines, which represents punishment. (People v. Souza (2012) 54 Cal.4th 90, 143.) A restitution fine is to be imposed under the law applicable at the time of the offense and not at the time of sentencing. (Ibid.) A fine that was properly imposed under the law at sentencing but improper under the law at the time of the offense violates ex post facto principles. (Id. at pp. 143-144.)
Effective January 1, 2012, section 1202.4, subdivision (b)(1), was amended as follows: "The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000), if the person is convicted of a felony. . . ." (Stats. 2011, ch. 358, § 1.) In 2009, when defendant committed the crime, the minimum fine was $200. (Former § 1202.4, subd. (b)(1).) The applicable amount of a restitution fine is calculated as of the date of the offense. (People v. Saelee (1995) 35 Cal.App.4th 27, 30.)
In Martinez, supra, 226 Cal.App.4th 1169, the offenses were committed in June 2011, at which time the minimum restitution fine was $200. When the defendant was sentenced on January 25, 2013, the minimum restitution fine was $280 and it was this amount the trial court mistakenly used to calculate the defendant's restitution fine. (Id. at pp. 1172, 1188-1189.) Finding it "more than likely that the court would have imposed the restitution fund fine using the $200 minimum that was in effect when appellant committed his crimes had counsel raised an objection at the sentencing hearing," the appellate court recalculated the restitution fine using the statutory formula and modified the judgment to reflect a restitution fine (and concomitant § 1202.45 parole revocation fine) in that amount. (Id. at p. 1190.)
This case is similar to Martinez, but for the dates. Defendant's crime in the present case occurred in 2009, but his conviction and sentencing hearing occurred in 2015. During sentencing, the court stated it was imposing "the minimum restitution fine of $300. I choose the minimum amount simply because the defendant is unlikely to be able to pay more than that since actual restitution is being ordered." As in Martinez, the trial court's comments suggest it intended to impose the minimum fine, which it mistakenly believed was $300, not $200. Accordingly, we will modify the judgment to reflect restitution and the concomitant parole revocation fines in the amount of $200. (Martinez, supra, 226 Cal.App.4th at pp. 1190-1191.)
IV
DISPOSITION
The judgment is modified to reflect that defendant has 2,727 days of presentence credits, consisting of 676 days in actual local custody time, 648 days in conduct credits, and 1,403 days of state hospital time. The judgment is also modified to reflect a $200 restitution fine in accordance with section 1202.4 and a $200 parole revocation fine in accordance with section 1202.45 as applicable on the date of the crime. The trial court is directed to prepare an amended abstract of judgment to reflect the modifications and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.