Opinion
F050834
5-16-2007
THE PEOPLE, Plaintiff and Respondent, v. MARIO OLIVAS, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., and Dawson, J.
Procedural and Factual Summaries
This is an appeal from a judgment entered after remand by this court in case No. F045878. Appellant Mario Olivas, Jr., entered a plea of no contest to possessing a firearm (a violation of Pen. Code, § 12021, subd. (a)(1)) and admitted three prior strike convictions within the meaning of section 667, subdivisions (c)-(j) and section 1170.12, subdivisions (a)-(e), and one prior prison term within the meaning of section 667.5, subdivision (b). At the initial sentencing hearing, the trial court denied Olivass motion to strike the prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and sentenced Olivas to a term of 25 years to life as a two-strike defendant. This court vacated the sentence after finding that one of the three prior strike convictions (a prior section 245, subd. (a)(1), conviction) did not qualify as a strike within the meaning of the three strikes law and that Olivas was denied effective assistance of counsel when his attorney failed to bring this fact to the courts attention. On remand, Olivas filed a new Romero motion which the court denied. The court again sentenced Olivas to 25 years to life, staying the section 667.5, subdivision (b), enhancement.
All further statutory references are to the Penal Code.
The facts of the underlying offense are not relevant to the issues on appeal and need only be summarized here. Olivas was stopped for speeding in May 2004. The traffic officer observed an open 12-ounce can of beer on the cars floorboard and a glass water "bong" on the front passenger seat. Olivas was arrested and searched. Olivas had on his person a pocket knife and a glass narcotics smoking pipe. A second knife and an unloaded .22 caliber rifle were found hidden in the car.
On appeal, Olivas contends that the trial court abused its discretion when it refused on remand to strike a prior serious felony conviction and that the imposition of the indeterminate term of 25 years to life constitutes cruel and unusual punishment. He also argues that the trial court erred by failing to calculate Olivass actual time served prior to resentencing and that it improperly stayed rather than struck the section 667.5, subdivision (b), enhancement.
DISCUSSION
I. Failure to strike prior
Olivas has not shown that the trial court abused its discretion in refusing to strike his prior serious felony conviction. A trial court has discretion to strike, at a defendants request or on its own motion, prior felonies alleged for sentence-enhancement purposes. (Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony allegation, 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 [three strikes] schemes 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.) We review a trial courts decision to deny a motion to strike priors for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The court abuses its discretion if its consideration of the factors set forth in Williams "`falls outside the bounds of reason ...." (People v. Williams, supra, 17 Cal.4th at p. 162.)
The record establishes that the trial court was aware of its discretionary power under section 1385 and Romero and considered the argument presented by Olivas. The trial court stated it was familiar with the probation report. The trial court recognized that Olivass current offense was a nonviolent offense, but correctly noted that, currently, the law does not limit three-strikes sentencing to serious or violent third strikes. The court stated that, until the law is changed, the court must consider Olivass entire criminal history and not just the nature of the third strike. The court carefully considered the applicable case law, including the cases cited by Olivas in his opening brief. The court carefully reviewed Olivass criminal history and his behavior in each instance, finding many parallels between his prior offenses and behavior and his current offenses and behavior. He possessed weapons and lied to police about his identity. The court said that "his type of behavior has not really changed so much in the 11 years since [the 1993] offense[s]." The court considered the nature of Olivass prior offenses, which were sexual assaults against a 16-year-old ex-girlfriend and another juvenile, and included acts of violence and injury. It noted that, at the time of his arrest in 2004, Olivas held no steady job and had no established residence. Olivas had five children, all being supported by their mother, not Olivas. The court noted the circumstances of the 2004 arrest, i.e., the time of night, the open container, the drug paraphernalia, and that Olivas was on parole at the time the offense was committed, "demonstrating that hes unwilling to conform to the rules of society." The court concluded that this history and these circumstances suggested Olivas was not outside the spirit of the three strikes law and found no extraordinary circumstances justifying the striking of a prior strike.
It would be an abuse of discretion if the court had struck the prior strike because of a personal antipathy for the three strikes law as it is currently written. (See Romero, supra, 13 Cal.4th at p. 531.)
We will not disturb the trial courts decision. The court made a careful and deliberate discretionary call. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434 [review of trial courts decision whether to strike prior under section 1385, like most other discretionary trial court rulings, is limited in scope]; People v. Carmony, supra, 33 Cal.4th at p. 374 [reviewing courts must give great deference to discretionary trial court rulings and will disturb them only upon clear showing of abuse which results in manifest miscarriage of justice].) We find no abuse of discretion.
II. Cruel or unusual punishment
Olivas further argues that the three-strikes sentence of 25 years to life constitutes cruel or unusual punishment under the federal and California Constitutions. We disagree.
Under the California Constitution, punishment is cruel or unusual if it is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Successful challenges to the proportionality of a particular sentence are rare. (Ewing v. California (2003) 538 U.S. 11, 20.) A determination of whether a punishment is cruel or unusual may be made based on an examination of the nature of the offense and the offender, "with particular regard for to degree of danger both present to society." (In re Lynch, supra, 8 Cal.3d at p. 425; see alsoPeople v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) With respect to the offense, we consider "the totality of the circumstances ... in the case at bar ...." (People v. Dillon (1983) 34 Cal.3d 441, 479.) With respect to the offender, we consider his "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.) A proportionality analysis can also take account of punishments imposed for similar or greater crimes in other cases in California and other jurisdictions. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1662.) The cruel-and-unusual-punishment clause of the Eighth Amendment of the federal Constitution also includes a "`narrow proportionality principle that `applies to noncapital sentences." (Ewing v. California, supra, 538 U.S. at p. 20.) In Ewing, the Supreme Court reiterated the right of California to make "a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime" and concluded that "[n]othing in the Eighth Amendment prohibits California from making that choice." (Id. at p. 25.) As the court noted "[i]n weighing the gravity of [a defendants] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at p. 29.)
Olivass prior offenses constituted serious antisocial behavior, and his current offense and behavior suggest he has done little to rehabilitate himself. Olivas was armed not only with the unloaded firearm, but with two knives, establishing a potential for violence, even if none had yet occurred. He was on parole and expressly prohibited from possessing weapons. He suffered a prior possession conviction as a juvenile. His prior offenses were violent. Given these circumstances, the sentence imposed is well within constitutional parameters. (Ewing v. California, supra, 538 U.S. at pp. 18, 19, 30-31 [three-strikes sentence of 25 years to life not cruel and unusual punishment under federal Constitution for current offense of shoplifting three golf clubs with three prior burglaries and prior robbery]; People v. Romero (2002) 99 Cal.App.4th 1418, 1424, 1433 [three-strikes sentence of 25 years to life not cruel or unusual punishment under California Constitution for current offense of shoplifting magazine with prior burglary and prior lewd act with child under age 14].) Olivass sentence punishes him not "merely on the basis of his current offense but on the basis of his recidivist behavior." (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) For all these reasons, we conclude that Olivass sentence is not "grossly disproportionate" and therefore not cruel or unusual. (Ewing v. California, supra, 538 U.S. at p. 23; People v. Romero, supra, 99 Cal.App.4th at p. 1431.)
III. Custody credits
Olivas contends that the court erred when it failed to calculate his actual time in custody, noting on the abstract only Olivass local custody time accrued prior to the original sentence and that the "Department of Corrections [was] to calculate defendant[]s credit for time served from the date of original sentence."
Section 2900.1 provides that, "[w]here a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." An appellate remand solely for correction of a sentence already in progress does not remove a prisoner from the Department of Corrections and Rehabilitations authority and restore the prisoner to presentence status. (People v. Buckhalter (2001) 26 Cal.4th 20, 33.) Work-time and behavior credits for prisoners serving a sentence already in progress are governed by different rules than those governing the award of good-behavior credits for presentence detainees. (Id. at p. 37; see also §§ 2930, et. seq., 2900.5, 4019.) Prison regulations specify how prisoners earn work and behavior credits to reduce their sentences while in prison, including a provision for periods where the inmate is removed to out-of-prison facilities for court hearings. (See Cal. Code Regs., tit. 15, § 3045.3, subds. (a), (b)(7).) It is within the Department of Corrections and Rehabilitations authority to calculate and award prison behavior and work credits. (People v. Robinson (1994) 25 Cal.App.4th 1256, 1257-1258, overruled on other grounds in People v. Buckhalter, supra, 26 Cal.4th at p. 40.) However, actual time credits are earned without reference to either section 2900.5 or section 4019; they are mandated by section 2900.1. These credits are simply a matter of calculation by reference to a calendar. (§ 2900.1.)
As we read Buckhalter, any credit for prison behavior and work time falls within the authority of the Department of Corrections and Rehabilitation. However, under the mandate of section 2900.1, the trial court should have determined all actual days spent in custody, "whether in jail or prison, and awarded such credits in the new abstract of judgment." (People v. Buckhalter, supra, 26 Cal.4th at p. 41.) We are not persuaded by the Attorney Generals argument that Buckhalter is distinguishable because the trial court imposed the identical sentence on remand. A new sentencing order was filed. Even though an identical term was selected, a new abstract was prepared. This courts earlier opinion vacated the original sentence. The sentence imposed on July 11, 2006, is a new sentence and the abstract should have reflected the actual days Olivas spent in custody as of that date.
On this record we see no reason to remand, however. (Cf. People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579 [appellate court corrected sentencing error rather than remanding because it was "unwilling to expend valuable judicial resources by engaging in idle gestures or merely adhering to ritualistic form"].) This court is able to calculate the proper award of actual time credit to be awarded for the time between the original sentencing date and the second sentencing date. Olivas is entitled to an additional 740 days actual time served. This amount is to be added to the 59 actual days awarded at the initial sentencing on July 2, 2004. We will order the trial court to prepare a new abstract of judgment reflecting this addition. The Department of Corrections and Rehabilitation is responsible, however, for awarding Olivas the amount of credits due under section 2930, et. seq.
IV. Stay of section 667, subdivision (b), enhancement
Lastly, Olivas contends the trial court improperly stayed, rather than struck, the section 667.5, subdivision (b) enhancement. The Attorney General concedes error and we accept the concession. The trial court has no authority to stay a section 667.5, subdivision (b), enhancement. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Because it is clear from the record that the sentencing court did not wish to add an additional year to the indeterminate sentence, we will order that the abstract be amended to strike imposition of the one-year section 667.5, subdivision (b), enhancement.
DISPOSITION
The judgment is modified as follows: The section 667.5, subdivision (b), enhancement is stricken and Olivas is awarded 740 days actual time credit. The trial court is directed to prepare a new abstract of judgment nunc pro tunc to July 11, 2006, reflecting the above changes. The abstract shall state that any prison behavior and work credits for the period of July 2, 2004 to July 11, 2006, are to be calculated by the Department of Corrections and Rehabilitation.