Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 05CM5575. James LaPorte, Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Brook Bennigson and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Fermin Olivas was convicted of second degree burglary, grand theft, and possession of stolen property in connection with the theft of an air compressor, a lawn mower, and an edger from a Home Depot store for which defendant was prosecuted as an aider and abettor. Pursuant to the “Three Strikes” law, he was sentenced to 25 years to life in prison. On appeal, defendant contends: (1) the trial court prejudicially erred by its failure to give a unanimity instruction sua sponte; (2) his conviction of possession of stolen property must be reversed because he was convicted of the theft of the same property he possessed; (3) his trial counsel rendered prejudicially ineffective assistance of counsel by (a) failing to bifurcate the trial of defendant’s prior convictions, (b) failing to request a unanimity instruction, and (c) failing to act as a zealous advocate at sentencing; (4) the cumulative effect of the errors at trial require reversal; (5) the trial court abused its discretion by denying his Romero motion to dismiss his prior strike convictions; and (6) his 25-year-to-life sentence is cruel and unusual punishment.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We will reverse defendant’s conviction of possession of stolen property (count 3). In all other respects, we will affirm the judgment.
PROCEDURAL SUMMARY
On June 16, 2006, the Kings County District attorney filed an amended information charging defendant with burglary (Pen. Code, § 459; count 1), grant theft (§ 487, subd. (a); count 2), and possession of stolen property (§ 496, subd. (a); count 3). The information also alleged that defendant had suffered four prior felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d).).
All statutory references are to the Penal Code unless otherwise noted.
The jury found defendant guilty as charged and found the prior conviction allegations true.
The trial court denied defendant’s Romero motion to dismiss three of his four prior strike convictions and sentenced him to 25 years to life on count 1. The middle terms of two years were imposed on counts 2 and 3 and then stayed pursuant to section 654.
FACTS
On December 27, 2005, Charles Valdez worked as a loss prevention investigator at a Home Depot store in Hanford. As he was walking the perimeter of the store, he saw Suspect 1 walk into the store through the contractor’s exit door, pushing a flat cart.
At trial, this individual was referred to as “subject one.” To ease the reader’s task, we adopt the People’s designation of this individual as “Suspect 1.”
After completing his first round of the store, Valdez returned to the contractor’s exit. He saw Suspect 1 outside with a flat cart, talking to defendant. Defendant was sitting in a small, white pickup truck. The pickup was parked backwards in a handicapped parking stall with its engine running. Valdez noticed that in the back defendant’s pickup was a brand new “Husky” air compressor still in its box. Husky is a brand sold exclusively by Home Depot. The type of air compressor in defendant’s pickup weighs about 200 pounds and requires at least two people to lift. Valdez valued the air compressor at $279.
Valdez saw defendant and Suspect 1 talk to one another briefly. Suspect 1 then went back into the store with another flat cart. Valdez followed Suspect 1 and eventually observed him go inside the garden department. There, Suspect 1 picked out the store’s “most expensive” lawn mower, valued at $699, and placed it on the flat cart. Suspect 1 then picked out an edger, valued at $299, and placed that on the flat cart. Suspect 1 pushed the cart towards the entrance door. He stopped, picked up an advertisement, and started looking around. He started moving closer to the door, and finally ended up walking out of the store with the merchandise on the cart without paying for it.
After Suspect 1 left the store, he was stopped by Matthew Newton, another Home Depot employee. Valdez then contacted Suspect 1 and requested a receipt. Suspect 1 produced a Home Depot receipt but the merchandise on the flat cart was not included on the receipt. Valdez told Suspect 1 if he did not have a receipt, they would need to go back inside and talk about the unpaid merchandise. Suspect 1 said “okay” and they started to walk back towards the store. Before they got inside, Suspect 1 made a gesture which scared Valdez. Valdez backed away from Suspect 1 and Suspect 1 took off running. Valdez and Newton chased Suspect 1 but were unable to catch him.
Before Suspect 1 ran away, Valdez told Newton to get the license plate number of defendant’s pickup. After Newton wrote down the number, he asked defendant if he knew Suspect 1’s name. Defendant said he did not know his first name but that his last name was either “Escabeto or Escaveto, he wasn’t one hundred percent sure.” Newton further testified that when he initially approached defendant, he asked him what was going on. Defendant told Newton “he was just bringing the guy over to pick some stuff up.” The police were called, but, before they arrived, defendant drove away. Valdez observed him heading north on 12th Avenue.
Officer Bryan Toppan was dispatched to the Home Depot around 1:30 p.m., and spoke first with Valdez and then to Newton. Defendant was stopped a short time later by a police officer at the intersection of 12th Avenue and Fargo. Officer Toppan took Valdez and Newton there to conduct an in-field showup. They identified defendant as the individual they had seen in the pickup truck.
In the back of defendant’s pickup truck, Officer Toppan observed a Husky air compressor that was “in the box, brand new.” Defendant was unable to produce a receipt for the air compressor. Valdez checked the store’s computer system to see if a Husky air compressor had been sold that day; he could not find any sales.
Video captured by the Home Depot’s surveillance system showed Suspect 1 coming out of the contractor’s exit with a Husky air compressor on a flat cart around 1:11:45 p.m. The surveillance video showed Suspect 1 pushing another flat cart towards the store’s main entrance at about 1:13:57 p.m., and reentering the store at 1:14 p.m. The video depicted Suspect 1 walking in and out of the store several times during the next few minutes, and then showed him entering the store with another flat cart at 1:18 p.m. The video next showed Suspect 1 pushing a flat bed card with a lawn mower and edger out of the store at 1:25 p.m.
After defendant was stopped, Officer Toppan advised him of his Miranda rights and then spoke to him about what happened at the Home Depot. Defendant told Officer Toppan that Suspect 1’s name was either Juan or Juanito Escabeto, and that he met him earlier that day in Selma at a location where people gathered looking for work. According to defendant, when they were driving, a friend called and said there was work in Hanford. They drove to Hanford and went into the Wal-Mart parking lot over by Big Bear Diner and met several individuals. According to defendant, the air compressor was in the bed of another truck, and Escabeto and another individual unloaded the air compressor from that truck, put it into defendant’s truck, and tied it down. Then Escabeto asked defendant if he could give him a ride over to the Home Depot.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant told Officer Toppan that Escabeto told him he needed to return the air compressor. Defendant brought Escabeto over to the Home Depot, Escabeto went inside, and a few minutes later he came out and said he needed a receipt. Escabeto took a piece of paper from the dashboard and then went back into Home Depot. According to defendant, after Escabeto went back in with the receipts, he was in the store for several minutes. He came back out with two men following him, and then took off running. The men came over and asked defendant to identify Escabeto. Defendant told them Escabeto’s name was Juanito. The store employee told defendant he could leave.
After Officer Toppan initially spoke with defendant, he viewed the Home Depot surveillance video. Officer Toppan observed that the video showed Suspect 1 taking a Husky air compressor out of Home Depot at 1:11 p.m., and reentering the store approximately three minutes later. Based on the distance between the Wal-Mart and Home Depot stores, which were across the street from each other, and which required a driver to negotiate a few traffic lights to drive from one store to the other, Officer Toppan did not think defendant’s story about the air compressor “add[ed] up” with the surveillance footage. Due to construction, the streets in the area were congested, and he thought it was “highly unlikely that somebody would be able to do that within three minutes.”
Officer Toppan confronted defendant with his suspicions. In response, defendant admitted he had lied about the name he had given the officer for Suspect 1. Defendant said he just made it up because he did not want Suspect 1 to get in trouble. He also said he picked Suspect 1 up in Fresno, not Selma, and that he knew him only by his nickname, “Oso.” Defendant said he had no knowledge about any theft of an air compressor, and denied involvement in any kind of plans to steal anything. He said there was no deal between him and Suspect 1. Later, however, defendant said that he picked up Suspect 1 in Fowler, not Fresno. Officer Toppan testified that when he questioned defendant about Suspect 1’s whereabouts, “[defendant] said that Oso – he knew that he was going to go to Fresno, because that’s where his fence was. But, he said that it was in the area of Belmont and Fresno Avenue area.” Officer Toppan explained a “fence” was a person who receives stolen property and then resells it.
DISCUSSION
I. Failure to Give a Unanimity Instruction
Defendant contends that because there were two acts which the jury could have used to convict him of the burglary and the grand theft, the trial court prejudicially erred by its failure to give a unanimity instruction sua sponte (Judicial Council of Cal. Crim. Jury Instns. (2007-2008), CALCRIM No. 3500). We conclude there is no error.
To eliminate the danger of a guilty verdict without unanimous agreement by the jury that the defendant committed a specific crime, the general rule requires either that the prosecutor elect among the crimes or that the court instruct the jury to agree on the same criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) A unanimity instruction is not required, however, if the evidence shows either one criminal act or multiple acts in a continuous course of conduct. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
Our review of the evidence reveals that the perpetrator’s acts in this case, for which defendant was held liable as an aider and abettor, were part of a continuous course of conduct and the acts were so closely connected in time as to form part of a single transaction, i.e., entering Home Depot twice and taking three items within 15 minutes. Therefore, no unanimity instruction was required. (People v. Maury (2003) 30 Cal.4th 342, 423.)
Notwithstanding defendant’s assertions to the contrary, the acts in this case were charged and prosecuted as a continuous course of conduct crime. Count 1 alleged that on December 27, 2005, defendant committed burglary by unlawfully entering a commercial building occupied by Home Depot with the intent to commit larceny. Count 2 alleged that that defendant committed grand theft by unlawfully taking money or property exceeding $400 in value “to wit lawn mower, trim edger, air compressor the property of Home Depot.” During closing argument, the prosecutor characterized Suspect 1’s actions as part of a single “plan” or “scheme” to steal from Home Depot and the key issue as whether defendant had knowledge of Suspect 1’s criminal intent. The prosecutor stressed defendant’s statement that Suspect 1 was going to Fresno, where his “fence” was located, as evidence of defendant’s knowledge of and complicity in the scheme to steal from Home Depot.
Examples where the prosecutor described the acts as part of a single scheme or course of conduct include, but are not limited to, the following statements (italics added):
Moreover, “[t]he ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz, supra, 51 Cal.3d at p. 100.) Defendant argues that the jury was provided a rational basis for distinguishing between Suspect 1’s taking of the air compressor and the taking of the lawn mower and edger because there was evidence defendant received the air compressor from Suspect 1 in the Wal-Mart parking lot across the street before he drove over to the Home Depot, where Suspect 1 entered and took additional items. Thus, defendant asserts in his reply brief: “[T]he defenses were different; as to the air compressor, the defense was that [defendant] did not assist the perpetrator enter or steal the item, as to the lawn mower and edger that he did not have knowledge or the intent to assist the perpetrator in the felonious entry or taking.”
Despite his assertions, the record of closing argument reveals defendant relied primarily on the same defense for both acts. Defense counsel did begin by suggesting the prosecution had failed to prove that the air compressor was actually taken that day from the Home Depot store in Hanford but quickly turned to the argument that, even assuming the air compressor, like the other two items, was taken by Suspect 1 from the Home Depot store, there was evidence suggesting defendant did not have knowledge of Suspect 1’s intent to steal the items, including defendant’s failure to flee and his cooperation when initially approached by Newton in the Home Depot parking lot. Even though defendant has attempted to offer different defenses, the differences are not significant given the nature of the conduct and the course of these events. On this record, we conclude no unanimity instruction was required.
II. Conviction of Receiving Stolen Property
Defendant contends his conviction of possession of stolen property must be reversed because he was convicted of the theft of the same property he possessed. The People concede error. We agree. When a person is convicted of both theft and possession of the same property, the conviction for possession must be reversed. (People v. Stephens (1990) 218 Cal.App.3d 575, 586.)
III. Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective for (1) failing to bifurcate the trial of his prior convictions, (2) failing to request a unanimity instruction, and (3) for failing to act as a zealous advocate at sentencing. We find no prejudicial error.
A. Standard of Review
“A defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsel’s performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome. [Citations.]” (In re Ross (1995) 10 Cal.4th 184, 201.) Where the record shows that counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. (People v. Pope (1979) 23 Cal.3d 412, 425.) The review of counsel’s performance is to be highly deferential, “‘[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citation.]’” (People v. Duncan (1991) 53 Cal.3d 955, 966.)
B. Failure to Bifurcate Trial of Prior Convictions
1. Background
At the beginning of the trial, the trial court read the charges to the jurors, including the prior conviction allegations. In this regard, the trial court stated:
“It is further alleged that the defendant has suffered the following prior convictions of a serious felony, in December of ’85 a residential burglary in Orange County. In December 9th, ’85 a residential burglary in Orange County Superior Court. These are evidently two separate offenses. In January of ’86, a residential burglary in Orange County Superior Court. And, again on January 9th, ’86 a residential burglary in Orange County. These are all four burglaries in the first degree.”
Towards the end of trial, at the request of the prosecution, the trial court admitted into evidence certified records from the California Department of Corrections – defendant’s section 969b packet – showing that defendant had suffered four prior convictions of residential burglary in 1985 and 1986, and defense counsel stipulated that the court could find defendant was the person identified in the records.
2. Analysis
Defendant argues that it was prejudicial for the jury to learn from the trial court of his “status as a four time convicted residential burglar before it heard any evidence on the charged theft related offenses” and for the last evidence for the jury to receive to be the records of his four prior strike convictions, particularly in light of their severity (first degree) and similarity (theft-related) to the current offenses, and in light of the absence of any defense evidence. Defendant relies upon People v. Calderon (1994) 9 Cal.4th 69, which stated that a grave risk of prejudice exists when a jury is asked to determine the truth of a prior conviction allegation at the same time it determines the defendant’s guilt of the charged offense. A jury may conclude that a defendant has a criminal disposition and thus probably committed the presently charged offense. (Id. at p. 75.) Defendant argues that since there was no tactical benefit in having a unitary trial, its prejudicial effect denied defendant effective assistance of trial counsel.
The People counter that defense counsel’s tactical decision not to seek bifurcation was a reasonable one. The People theorize that because “counsel knew the evidence of [defendant’s] guilt was overwhelming, knew [s]he could not properly argue to the jury that they should not convict [defendant] because he was facing a 25 year to life sentence for a ‘petty burglary,’ and, thus, sought to get [defendant’s] strike priors in front of the jury in the hopes that they would nullify the verdict because of the harsh sentence.” The People further posit that “it is entirely possible that at the start of the trial [defendant] intended to testify” and “[k]nowing that [defendant’s] convictions would come to light in this situation, [defendant’s] trial counsel could have made the decision not to move to bifurcate the proceedings.”
We agree that defense counsel could have had a reasonable, tactical basis for not seeking bifurcation. However, even if this conclusion could be debated, we cannot find that it is reasonably probable that a more favorable outcome would have resulted had the trial of defendant’s prior convictions been bifurcated. The record discloses ample evidentiary support for the conclusion that defendant knew the perpetrator’s intent to steal the items from Home Depot and his role as an aider and abettor: the surveillance video capturing Suspect 1’s taking of the three items from Home Depot without paying for them; the presence in defendant’s truck of a Husky air compressor resembling the one in the surveillance video; defendant’s implausible and inconsistent statements to Officer Toppan, and defendant’s statement that he knew Suspect 1 was going to Fresno where his “fence” was located. Defendant’s alleged lack of knowledge the items were stolen or that Suspect 1 went into the Home Depot with the intent to steal is simply not credible in light of the record. Moreover, as the People correctly point out, the jury in this case was instructed it could not consider defendant’s prior convictions as proof he committed the current crimes and there is no indication the jury failed to follow the instruction. The jury is presumed to understand and follow the trial court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Carter (2005) 36 Cal.4th 1114, 1176-1177.) Given this record, no prejudicial error can be found.
C. Failure to Request a Unanimity Instruction
As discussed above, the evidence shows the acts in this case were part of a continuous course of conduct. Therefore, trial counsel could rationally conclude that it would have been futile to request a unanimity instruction. An attorney does not have to make a futile motion. (People v. Maury, supra, 30 Cal.4th 342, 390.) Because trial counsel could have reasonably decided not to request a unanimity instruction, defendant has failed to show error or prejudice.
D. Failure to Act as a Zealous Advocate at Sentencing
Finally, defendant contends trial counsel was ineffective because she failed to act as a zealous advocate at sentencing. Again, we find no prejudicial error, largely because we disagree with defendant’s characterization of defense counsel’s performance during sentencing. We can best address defendant’s contention by reviewing the sentencing proceeding as it unfolded.
The matter came on for sentencing on July 25, 2006, before Judge LePorte, a different judge than the one who presided over defendant’s jury trial (Judge Brauer). At the beginning of the hearing, Judge LePorte announced his tentative decision to follow the probation officer’s recommendation to sentence defendant to 25 years to life on count 1, because of defendant’s four strike priors, and to sentence him to the aggravated terms on counts 2 and 3, but to stay those terms pursuant to section 654. Defense counsel then moved for the court to strike all but one of the prior strike convictions pursuant to Romero.
Although defendant faults counsel for being unprepared and not filing a memorandum or statement in mitigation for the court to consider, defense counsel made most, if not all, the points defendant now makes on appeal for why the trial court should have granted his Romero motion, including, “the minor nature of the current offenses,” defendant’s “passive and accessory role,” the fact defendant’s “qualifying strike priors were committed over 20 [years] before the current offense and occurred in a relatively short period of time when [defendant] was just 21 years old,” “all of the crimes have been nonviolent property crimes,” and, at the time of the instant offenses, he was employed. Furthermore, at the continued sentencing hearing on July 26, 2006, defense counsel notified the court that defendant wished to be heard. Defendant then proceeded to explain his past criminal conduct in relation to his longstanding, untreated drug problem, which he expressed to the court that he was committed to overcoming. Because it appears defense counsel made sure all the points salient to defendant’s Romero motion were presented to the court for its consideration, we cannot agree with defendant’s assertion that counsel provided ineffective assistance by failing to act as a zealous advocate at sentencing.
In his briefing on appeal, defendant only quotes a small portion of trial counsel’s argument during sentencing, but the record reveals her argument was much more extensive and raised all the key factors weighing in favor of striking defendant’s prior convictions, as demonstrated by the following excerpt from defense counsel’s argument during the sentencing hearing:
Moreover, there is no indication that defense counsel’s alleged unpreparedness had a prejudicial effect on defendant on any event. First, defendant faults defense counsel for not ensuring the sentencing court had the five letters written on defendant’s behalf at the beginning of the sentencing hearing on July 25, 2006. However, the record shows counsel sought a continuance so that the court would have “ample opportunity to review those letters.” The court readily ordered a recess and, when the hearing resumed, indicated it had read all the letters. Thus, no prejudicial error appears from any delay in the court’s receipt of the letters.
The next glitch in the proceedings appears to have occurred when the court challenged defense counsel’s representation that defendant had been employed for a period of time before the instant offense. The court’s challenge appears to have been based on the probation officer’s report, which seemed to show that defendant had only been released from prison custody for ten days prior to the current offense, and thus could not have been gainfully employed as defense counsel asserted. Although trial counsel did not then have defendant’s “chronos” in her possession to address the court’s challenge, she successfully obtained a continuance of the sentencing hearing to the next day. At the continued sentencing hearing, defense counsel presented the court with the accurate information, and the trial court expressly corrected the record to show that defendant had been out of custody for a period of six months before the current offenses, during which time he was employed. So again, defendant can demonstrate no prejudice as a result of counsel’s alleged unpreparedness.
In this regard, the following discussion occurred:
Defendant additionally complains the probation report erroneously showed that count 3 was for receiving stolen property by extortion. Although this mistake was not brought to the court’s attention by defense counsel, defendant has failed to show how he was prejudiced. Indeed, the record shows that at the continued sentencing hearing on July 26, 2005, the court decided to depart from the probation officer’s recommendation (and the court’s prior tentative) to impose aggravated sentences and, instead, selected the middle terms for both counts 2 and 3.
IV. Cumulative Error
Defendant argues the cumulative effect of the errors at trial require reversal. Because we have rejected all his claims, except with respect to count 3, we necessarily reject the claim of cumulative error. (People v. Bolin (1998) 18 Cal.4th 297, 335.)
V. Denial of Romero Motion
In his supplemental appellant’s brief, defendant takes the position that the trial court abused its discretion by refusing to dismiss or strike his prior felony conviction allegations. We disagree.
The Three Strikes law “‘was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.) “‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (Ibid.) “Thus, the 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.” (Id. at p. 378.)
If the trial court does decide to depart from this sentencing norm, the court may dismiss a prior felony conviction allegation. (§ 1385; Romero, supra, 13 Cal.4th at pp. 529-530.) The court “must consider whether, in light of the nature and circumstances of [the defendant’s] 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.) But, because the Three Strikes law creates a strong presumption that any sentence conforming to its sentencing norm is both rational and proper, only in limited circumstances will a trial court abuse its discretion by deciding not to dismiss a prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
A defendant has the right to seek review of a trial court’s decision not to dismiss a prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 376.) The trial court’s decision is reviewed under the abuse of discretion standard, and the burden is on the defendant to show that the court’s decision was “‘“irrational or arbitrary.”’” (Ibid.) “[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.) “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]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.]” (Id. at p. 378.)
But, the Supreme Court has stressed that such cases are extraordinary. “Where the record is silent [citation], or ‘[w]here the record demonstrates that the trial court 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’ [citation]. Because 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. Of course, in such an extraordinary case – where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ – the failure to strike would constitute an abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)
In this case, the trial court considered defendant’s motion to strike his prior convictions and stated:
“[T]he Court would find it does find it unfortunate for the defendant’s wife and child – and children, they’ll be adversely affected. The problem is that [defendant’s] record discloses that he’s had a life that has been filled with crime ever since a juvenile. He’s had misdemeanor burglaries, first-degree felony burglaries, two of them, grand theft breaking and entering, second-degree burglaries, various other thefts. And it appears that even though he had grand thefts after he got out of prison in November 19 – I’m sorry, in – after he was sentenced the last time he had a second-degree burglary with four strike priors, he got leniency by the striking of all the strikes and then he committed a grand theft which was made a misdemeanor in March of 2003, that was after a series of four parole violations. And then there was another misdemeanor matter out of Fresno County July 19 – strike that, 2004.
“[The prosecutor] references the three strikes statute. There’s a case called People versus Williams, a Supreme Court decision, which says the Court has to decide whether it’s within the spirit of the three strikes statute to apply the provisions of that strike when you’re dealing with someone who appears to be a career criminal.
“Unfortunately, [defendant], you seem to fit that pattern. And it’s always tragic in a Greek sense when this happens, but the Court’s going to follow the law. I would note that you’re statutorily ineligible for a probation grant .…
“The Court wouldn’t be inclined any way to grant probation because you’ve never satisfactorily completed any parole or probation grant. You’ve served numerous prison sentences, committed multiple offenses, including a first-degree burglary at least twice, a second-degree burglary at least twice, a grant theft, breaking and entering, several misdemeanor thefts, possession of stolen property, false identification to a peace officer, all of which would suggest that since 1981 you’ve been involved with a life of crime some 25 years.”
In light of the trial court’s analysis and the record before us, we cannot say the court abused its discretion by refusing to dismiss defendant’s prior convictions. The court articulated its reasons for denying the Romero motion and the record demonstrates that the court carefully considered relevant factors, such as defendant’s history and his failure to reform even when given a reprieve from a 25-year-to-life sentence in 2000. The record of defendant’s criminal history supports the trial court’s findings. We conclude defendant’s case is not an extraordinary one, and the trial court’s decision not to dismiss defendant’s prior convictions did not exceed the bounds of reason or rationality. There was no abuse of discretion.
The report of the probation officer reflects that defendant was arrested on November 11, 1999, and charged with second degree burglary and four strike priors, and that on May 10, 2000, he entered a plea agreement under which the court struck all but one of his strike priors pursuant to Romero, and he received a mitigated prison term of 32 months. During the sentencing hearing in the instant case, defendant described his conduct underlying his 2000 conviction as follows: “The second-degree commercial burglary that occurred in 1999 was a washing machine, coin operated washing machine in my own backyard that was from a company that handled commercial washers, and I had tooken [sic] the coins out of that. Uhm, that was due to drug addiction.”
VI. Cruel and/or Unusual Punishment
Defendant contends his prison sentence of 25 years to life constitutes cruel and/or unusual punishment under the state and federal Constitutions. (Cal. Const., art. I, § 17; U.S. Const., 8th Amend.) Assuming defendant has not waived this issue by failing to object at sentencing, we reject his contention.
A. California Standard
A sentence is unconstitutional according to California law 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.) In order to challenge a sentence as cruel and unusual the defendant has a considerable burden to overcome. (People v. Wingo (1975) 14 Cal.3d 169, 174.) The doctrine of separation of powers is firmly settled in the law of California, and the determination of sentencing is a legislative function. (Ibid.) The validity of enactments will not be questioned “‘unless their unconstitutionality clearly, positively, and unmistakably appears.’” (Ibid.)
To determine whether a sentence is disproportionate, courts should (1) consider the nature of the offense and the offender, (2) compare the punishment with punishments imposed for more serious crimes in California, and (3) compare the punishment with punishment imposed for the same crime in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.) Applying these factors, we conclude defendant’s punishment is not cruel or unusual under California law because it is not disproportionate to his crimes.
1. Nature of the Offense and the Offender
Defendant argues that second degree burglary is “neither serious or violent.”
Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances, including the defendant’s motive, involvement, the manner of commission of the crimes, the consequences of his acts, and his individual characteristics such as age, prior criminality, and state of mind. (People v. Lucero (2000)23 Cal.4th 692, 739.)
Here, defendant’s substantial criminal background makes him “precisely the type of offender from whom society seeks protection by the use of recidivist statutes.” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1415; overruled on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.) As the trial court noted, defendant has engaged in criminal activity for approximately 25 years, beginning when he was a juvenile. In addition to his four prior convictions for first degree burglary in 1985 and 1986, for which he served prison terms, his convictions include misdemeanor false identification to a peace officer, possession of a weapon, and possession of stolen property in 1984, misdemeanor burglary and possession of burglary tools in 1985,
petty theft in 1988, grand larceny/breaking and entering in 1992, second degree burglary in 2000, misdemeanor grand theft in 2003, and misdemeanor damage/use of power lines in 2003. Defendant served prison terms for the 1992 and 2000 convictions and violated parole on four different occasions between 2001 and 2004. “There is no indication defendant desires to reform or to change his criminal behavior.” (People v. Ingram, supra, at p. 1415.) Indeed, he chose to reoffend even after previously avoiding a 25-year-to-life sentence in 2000. “Fundamental notions of human dignity are not offended by the prospect of exiling from society those individuals who have proved themselves to be threats to the public safety and security.” (Id. at p. 1416.) In light of the nature of the offense and the offender, defendant’s sentence does not shock the conscience or offend human dignity.
Moreover, defendant’s 25-year-to-life sentence is the same sentence that has been imposed in similar cases and upheld by the courts. (See, e.g., Ewing v. California (2003) 538 U.S. 11, 30-31 [theft of $1,200 worth of golf clubs]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [theft of $150 worth of videotapes]; People v. Romero (2002) 99 Cal.App.4th 1418, 1424, 1433 [magazine theft].) Defendant argues his case is more similar to People v. Carmony (2005) 127 Cal.App.4th 1066, 1078 (Carmony) [failure to update sex offender registration] and Ramirez v. Castro (2004) 365 F.3d 755, 768 (Ramirez) [VCR theft], in which Three Strike sentences were held to be disproportionate to the crimes. Defendant’s case is distinguishable from Carmony because defendant did not passively violate a regulatory provision. As for Ramirez, we first note that decisions of lower federal courts are not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Of course we may consider decisions of lower federal courts for their persuasive effect (People v. Bradford (1997) 15 Cal.4th 1229, 1305), but even if we agreed with the analysis in Ramirez, the caseis distinguishable. In Ramirez, two members of a Ninth Circuit panel found unconstitutional a Three Strikes sentence for a defendant whose triggering offense was a petty theft with priors. The defendant committed the petty theft when he shoplifted a VCR from a Sears department store. His priors consisted “solely of two 1991 convictions for second-degree robbery obtained through a single guilty plea, for which his total sentence was one year in county jail and three years probation” and the prior offenses were “more accurately described as ‘confrontation petty theft....’” (Ramirez, supra, 365 F.3d at p. 768.) The force used in these offenses occurred when the defendant attempted to flee the scene, resulting in a minor foot injury to the security guard, and in the other incident the security guard was not harmed when defendant pushed him away as he fled the store. (Ibid.)
In contrast, defendant’s record included separate prison terms and offenses. He received a 28-month prison sentence for the two 1985 first degree burglary convictions and a 16-month prison sentence for the two 1986 first degree burglary convictions. Thus, Ramirez does not support defendant’s argument.
2. Punishment for More Serious Crimes in California
Defendant contends his sentence is disproportionate because his sentence is substantially longer than sentences imposed for such crimes as second degree murder, rape, and child molestation.
First, for purposes of determining the proportionality of defendant’s sentence, we do not compare his sentence to the sentence imposed on a first-time offender. “[I]t is proper to punish a repeat offender more severely than a first-time offender. The proper comparison would be to a recidivist killer, whose punishment would be the same as defendant’s.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) Second, defendant’s punishment is based on his status as a third strike offender. “[T]he three strikes law punishes not only his current offenses, but also his recidivism. 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.)
3. Punishment for Similar Offenses in Other Jurisdictions
Defendant argues his sentence is unconstitutional because most other jurisdictions apply recidivist laws more leniently. California’s Three Strikes law, however, is consistent with the national trend of applying increased sentences to repeat offenders. (People v. Ingram, supra, 40 Cal.App.4th at p. 1416.) While California’s punishment scheme is among the most extreme, this does not mean it is unconstitutional. (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) “This state[’s] constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code.” (Ibid.) “It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons ‘advance[s] the goals of [its] criminal justice system in any substantial way.’” (Ewing v. California, supra, 538 U.S. at p. 28.) Therefore, defendant’s claim is unsupported.
B. Federal Standard
Defendant also contends his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The United States Supreme Court has held that a sentence violates the Eighth Amendment proscription against cruel and unusual punishment if a sentence is grossly disproportionate. (Lockyer v. Andrade, supra, 538 U.S. at p. 71.) Only an extraordinary case will constitute a constitutional violation. (Id. at p. 77). In considering a federal constitutional challenge, the steps of the analysis are virtually identical to those applied by California courts under the state Constitution (People v. Ayon (1996) 46 Cal.App.4th 385, 396, overruled on another ground in People v. Deloza (1998) 18 Cal.4th 585, 593-595), and “the federal Constitution affords no greater protection than the state Constitution” (People v. Martinez, supra, 71 Cal.App.4th at p. 1510). Our review of United States Supreme Court jurisprudence on this subject reveals no violation of the federal prohibition against cruel and unusual punishment. (See Lockyer v. Andrade, supra, 538 U.S. at pp. 76-77; Ewing v. California, supra, 538 U.S. at pp. 30-31; Rummel v. Estelle (1980) 445 U.S. 263, 266 [life sentence under Texas recidivist statute for obtaining $120.75 by false pretenses after previous convictions for credit card fraud and passing a forged check did not violate federal Constitution].)
DISPOSITION
Defendant’s conviction and judgment upon count 3 (receiving stolen property) is reversed; in all other respects, the judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., CORNELL, J.
“First of all, he lies about Oso’s name.… Why does one lie? It’s usually to conceal the truth, and the truth is that the defendant and Mr. Oso, or Oso, knew exactly what they were doin[g], they were going to go to Home Depo[t] and lift some property and take it up to Fresno to a fence and sell it as – and sell it.”
“If you give somebody a ride to the bank and you realize that that guy just committed burglary or robbery and the cop says, ‘What happened,’ are you going to lie about the fact that the guy came over to your house and gave him a ride, or are you going to come up with three stories about where you picked him up? If you didn’t know there was a crime involved, or you didn’t know the guy was going to commit a crime you tell the truth. You usually lie when you’re trying to conceal the truth. And, the truth is, the defendant and Oso met somewhere, agreed what they were going to do, and the defendant agreed to provide transportation.”
“And, he lied because he didn’t want to get caught. He didn’t want the officer to know that he was involved in this scheme to go to Home Depo[t] and lift some property to take up to Fresno to a fence. At the most damning evidence, and the most damning statement by the defendant is when asked where Oso is he replies, ‘You know, I – I don’t know, but I think he’s going to be in Fresno, because he was going to go see the fence. That’s where his fence is.’ When asked, the officer explains that ‘fence’ is a term that thieves and cops use to describe the person that you sell stolen property to. How does he know that Oso has a fence in Fresno, unless he was involved in this scheme? Of course he knew exactly what was going on…. He’s basically waiting for the guy to come but with more property, so he can make a quick get away, and gets caught. So, did he know what was going on? Absolutely. And, did he drive his truck to help it? Absolutely.”
“Yes, thank you. We are requesting relief pursuant to People versus Romero. The basis for the – [defendant’s] exposure to 25 to life is for prior first-degree burglaries; however, those first degree burglaries occurred within a very short period of time and it was 20 years ago. And although [defendant] does have a lengthy prior record, they are all property offenses. They’re all theft offenses. There’s no acts of violence. So he’s not a danger to people, it’s just he is a danger to property.
“Concerning [defendant’s] culpability in this case, it was an aiding and abetting theory. He was not the main player. He was the driver of the vehicle having – he did not enter the store. He did not threaten anybody.… [¶] … [¶]
“[I]n looking at [defendant’s] record, the two felonies, the strike convictions happened within a very short period of time, it looks like within a month of each other. This was 20 years ago, and his record, although it’s lengthy, they’re all theft offenses. There is no indication that he is a violent person or a danger to people, just their property.
“The circumstances in this case is that he was not the main player in this case. He was not – he did not enter the store, he did not actually steal anything. He was driving the vehicle where this property was being placed.
“And concerning his – well, the letters that were written on his behalf show that he does have the ability to be a productive citizen. He was working and apparently his employer – he has stable employment. So this is a man, I think that if he’s given another, let’s say six years, probably will come out of this at … 47, and not commit any more crimes.…”
“THE COURT: I remember what happened. Your question was with reference to whether the 969(b) packet or some other document shed light on the probation report’s notation that the defendant on November the 12th, 1999, in Fresno County Superior Court had a plea agreement that struck all the prior strikes and sentenced him to the mitigated prison term of 32 months whereby he then proceeded to violate parole on April the 23rd, ’02, April the 3rd, ’03, July the 8th, ’03, and November the 22nd, ’03, and then was discharged on December the 17th, ’05, having served the maximum confinement time.
“[DEFENSE COUNSEL]: Yes. The reason why I was requesting that information was because the Court had asked – I was making a comment concerning [defendant’s] work history. There was a letter in the – in the – attached to the report that indicated that he had been employed, he was dependable and a good employee, and the Court inquired as to how that could happen when he was only released for custody for about ten days, so I needed the 969 (b) package to see if that was true, and that is an error.
“[Defendant] was released from custody according to the 969 (b) package in the chrono in June 12th, ’05. So he was released approximately six months, he was free from custody for approximately six months.
“THE COURT: I see.
“[DEFENSE COUNSEL]: And during that time he was gainfully employed. The other comments I
“THE COURT: Excuse me, so we can correct the record, he was released from custody on June the 12th, although the discharge didn’t occur until December?
“[DEFENSE COUNSEL]: Exactly.
“THE COURT: Okay.”