Opinion
C077692
03-13-2017
THE PEOPLE, Plaintiff and Respondent, v. SAMOL SAM OM, Defendant and Appellant.
NOT TO BE PUBLISHEDCalifornia 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF09109)
Defendant Samol Sam Om appeals from a sentence and judgment imposed following this court's remand to the trial court for resentencing. He argues the new sentence impermissibly exceeds his original aggregate sentence and constitutes cruel and unusual punishment in violation of the California and United States Constitutions.
In a supplemental brief, defendant further argues his case must be remanded for resentencing pursuant to Proposition 36 (the Three Strikes Reform Act of 2012).
We affirm the judgment.
FACTS AND PROCEEDINGS
We take the facts of defendant's underlying crimes and the related procedural history from this court's nonpublished opinion in People v. Om (Sept. 23, 2013, C068420) 2013 WL 5304166 affirming his convictions and remanding for resentencing.
S.L. has two children, D.L. and S.P. In October 2005, while S.L. was in the process of divorcing the children's father, her sister S.R. introduced her to defendant. The defendant and S.L. married within two years.
Once married, defendant had difficulty maintaining employment, and S.L. began supporting him. S.L. did not remember telling police that defendant began using cocaine or methamphetamine. However, defendant began consuming alcohol on a daily basis and became increasingly paranoid and violent with S.L. and her children. S.L. believed defendant was mentally ill. She thought treatment was the answer because defendant's behavior normalized when he was sober.
Counts 1, 2, and 3 - November 2007
On November 3, 2007, defendant and S.L. got into a fight. The children were not present. Defendant punched and choked S.L. She could not breathe for a few seconds and thought she was going to die. Defendant also "slashed" S.L. with a knife, although she did not think he meant to cut her. He was "just thinking wrong." Defendant bandaged the wound for S.L. but the knife wound left a scar on her arm. After the incident, S.L. was "[b]lack and blue all over."
Count 4 - Summer 2008
Because they did not have a kitchen table, the family dined on a mat on the floor. One day in summer 2008, S.L. left a bowl of hot soup on the floor. While drunk and angry, defendant kicked the bowl and the soup flew onto S.P., who was burned and scarred as a result. Defendant refused to let S.P. go to the hospital for treatment because he was fearful of getting in trouble.
October 2008
Around October 2008, S.R. took custody of D.L. and S.P., which made defendant "go crazy." S.R. had lost her job at a major retailer, and S.L. believed S.R. took the children because she wanted the child support payments that S.L. received from her ex-husband. S.L. did not agree to give S.R. her children. She thought it would be temporary; just a couple of days. S.R. wanted them permanently and filed a request for child support. S.L. was not concerned about the children's safety because defendant never hit them. S.R. told S.L. that she would give up the guardianship if defendant and S.L. separated.
D.L. was interviewed the day before he left to live with S.R. S.R. took D.L. to the interview and gave him a list of things to say. D.L. was told that he was going to live with S.R. because it was not safe for him to stay with S.L. and defendant. D.L. wanted to live with them to watch over his mother and protect her. D.L. did not spend much time with S.L. during the four or five months he lived with S.R.
In S.L.'s opinion, had S.R. not taken the children, defendant would not have hit her. S.L. believed that defendant went crazy after S.R. took the children. She acknowledged that the children were living with her and defendant during some of the abuse.
Sometime prior to December 18, 2008 - Count 5
S.L. did not believe that defendant hurt anyone on purpose. Rather, "he was just being sick." He "had mental illness." For example, on one occasion, defendant was walking around the house. "He was moving around all mad." Defendant "accidentally" punched S.P. in the stomach. S.P. cried a little, and defendant apologized.
S.P. described the incident differently. She explained that she tried to separate defendant and S.L. as they argued. Defendant punched or kicked S.P. in the stomach and she fell against a wall. It hurt a little, but not very much. S.P. did not think that defendant simply meant to push her aside.
December 18, 2008 - Count 7
A few days before a custody hearing for D.L., defendant and S.L. got into an argument. Defendant had been drinking and became upset. He thought that S.L. was sleeping around. He also was upset that the children were gone and he was losing the family. He became frustrated and punched S.L. in the mouth and ribs. S.L. screamed, and S.P. entered the room. S.P. was scared. The punch left S.L. "black and blue," but eventually it faded away. S.L. did not attend the guardianship hearing because she did not want anyone to see the bruise.
Later that day, defendant and S.L. were watching boxing. He stood up and "just started pounding on" her, striking her left shoulder. Afterward, he remarked, "that's post-traumatic stress," and walked out the door. S.L. had a bruise on her arm for a week or so. Defendant never apologized; instead, he denied that he had done anything. "He was like somewhere else."
S.L. later reported this incident to West Sacramento Police Officer Rinaldo Monterrosa. She said she had a bump from the incident, and she showed Monterrosa some bruises. She told him defendant had punched her on the left side of her face, left shoulder, and left rib cage area.
December 24, 2008 - Counts 8 and 9
On December 24, 2008, defendant was upset that the children were gone and his life was falling apart. He started drinking. He looked out the window, noticed a car in the parking lot, and thought that someone was spying on them or that S.L. had sent someone to spy on him.
Defendant came at S.L. with a knife and tried to stab her. He put the knife "real close" to her throat, about 12 inches away. Defendant may have said, "I'm going to kill you," though S.L. could not remember. S.L. was scared. She cried and begged for mercy.
S.L. later reported this incident to Officer Monterrosa. She told him that defendant had seen a car outside their apartment. He accused S.L. of plotting against him and asked her who was in the car. Then he put a knife to her neck and said, "I'm going to kill you."
May 2008 to January 2009 - Count 10
Defendant kicked and punched the walls of the couple's apartment, leaving holes that he repaired. According to S.L., defendant was "[j]ust mad. Mad at everything. Everything is gone." To D.L., defendant appeared to be relaxed after he punched or kicked the walls.
January 6, 2009: Counts 11 and 12
On January 6, 2009, defendant and S.L. went to a friend's house. Defendant had been drinking. Around 5:00 or 6:00 p.m., after they returned home, he started looking for his military knife. He became upset because he thought he had lost the knife. In fact, S.L. had hidden the knife because she was afraid that he again might do something to her. He got very angry and came at her with what she thought was a kitchen knife. She believed he was going to kill her, since the children were away. Defendant told S.L., "I'm going to kill you if I get locked up and you have something to do with it." Eventually, defendant calmed down and went to sleep.
S.L. later told Officer Monterrosa about this incident. She said that defendant had threatened to kill her. She also said her family was trying to end their relationship because defendant keeps hurting her. S.L. said that her children had seen a lot, which is the reason why they no longer were in the house. She also said that defendant no longer hits her; instead, he grabs the knife.
January 7, 2009: Count 13
When defendant awoke the next day, he told S.L. he was going to take out the garbage. He left the car keys and told her she could leave if she needed to cool off from their fight. S.L. saw that moment as her opportunity to leave. She thought defendant had gone mad and would kill her if she did not flee. She drove to the police station and told Officer Monterrosa about several incidents of domestic violence.
Several family members, including S.P., met S.L. at the police department. Defendant arrived while everyone was there. According to S.P., defendant "said that if he was going to go to jail that he's going to make sure that something is going to happen to" the family members. Defendant said similar things when he and S.L. fought. A West Sacramento Police records clerk who was present behind a glass partition believed she had seen defendant mumble something, but she was not certain.
The parties stipulated that "if a representative from a drug testing laboratory were called to testify, that person would testify that a sample of blood taken from the defendant on January 7th, 2009, contained 0.02 nanograms per milliliter of methamphetamine." In Officer Monterrosa's experience, use of methamphetamine can cause erratic behavior, paranoia and mood swings.
The trial court took judicial notice of the fact that defendant had suffered a criminal threats conviction in 2007. (People v. Om, supra, 2013 WL 5304166, *4.)
Earlier Uncharged Acts of Domestic Violence
1. Gun Incident
When they lived in Stockton, defendant installed a surveillance system that had cameras to monitor each room. He had a gun. One time, defendant had S.L. and her children lie down on the ground. According to S.P., he pointed the gun at their heads. He told them to stay down and not move. Defendant seemed traumatized; S.L. and S.P. were scared. The trio remained on the floor for 10 to 15 minutes. S.P. waited for defendant to calm down and get back to normal. Apparently, defendant thought people were living on the roof and in the attic. He claimed he was trying to protect everyone.
2. C.N. Incident
On May 3, 2008, defendant, S.L., and S.P. went to Stockton for the birthday of defendant's mother, C.N. They stayed the night. While S.L. was sleeping, defendant started "pounding" on her with his fists. She screamed for help and everyone rushed into the room. C.N. asked defendant why he was hitting S.L. He got angry and punched C.N. in the jaw. She cried and ended up with a bruise on the left side of her chin.
When S.L. asked defendant why he struck her, defendant explained that his stepfather had fallen in love with another woman. Defendant mistakenly believed that S.L. was the woman his stepfather had fallen in love with. S.L. has a scar on her shoulder from the incident.
C.N. recalled the incident differently. C.N. recalled that she tried to leave the house around 5:00 a.m. Defendant was drunk. He asked her where she was going, and then he accidentally hit her. Defendant was pushing C.N.'s jaw and laughing at the same time. C.N. knew it was an accident because defendant was confused. He had been drinking all night. C.N. bruised, but only because she is diabetic. The police arrived around 6:00 a.m. C.N. told the police that defendant was drunk and had been drinking the entire night. She denied saying that defendant had been yelling at S.L. and harassing her. She also denied telling the police that she did not want defendant at her home and that he punched her. She did not tell an officer that the impact made her fall over. The police did not speak with her through an interpreter. Defendant did not tell C.N., "I didn't hit you, you hit yourself."
Around 9:44 a.m., Stockton Police Officer Dean Jacobs responded to a disturbance call and obtained a statement from C.N. C.N. had a bruise on the side of her face. According to Officer Jacobs, C.N. explained that she heard arguing in the area where defendant's wife and children were staying. She went to the area to break up the fight. Defendant got upset and hit her in the face. C.N. fell down, but she did not lose consciousness. Afterward, defendant said something like, "I didn't hit you; you hit yourself." Defendant left. C.N. said she did not want defendant at the house because there always were problems. C.N. said that defendant had been drinking the entire night.
3. Threat to burn down the apartment
One morning in the summer of 2008, around 2:00 or 3:00 a.m., defendant came home drunk and angry. He thought that someone was inside the apartment. Defendant kicked the door of the bedroom where S.L. and S.P. were sleeping. He lit an oil container and said that he was going to burn down the apartment. S.L. screamed at defendant, and he stopped.
4. Striking S.L.'s head with a telephone
On another occasion, when defendant and S.L. were driving around looking for D.L., defendant struck S.L.'s head with a telephone, causing her head to bleed. Afterward, S.L. went to her parents' house.
5. Shooting D.L. with a paintball gun
D.L. testified that, on one occasion while he was in the rear seat of a car, defendant shot him in the arm with a paintball gun. The impact left a bruise that lasted for a couple of days.
S.P. recalled the incident differently. She explained that, during a fishing trip, defendant retrieved the paintball gun from the car and fired it at D.L. four times, hitting him once in the leg. They were not playing paintball at the time. Defendant also shot himself in the leg. (People v. Om, supra, 2013 WL 5304166, *4-5.)
A jury found defendant guilty of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a); counts 1 & 7; unless othewise set forth, statutory references that follow are to the Penal Code), assault by force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2), assault with a knife (§ 245, subd. (a)(1); counts 3 & 8), child abuse or endangerment (§ 273a, subd. (a); count 4), misdemeanor child abuse or endangerment (count 5), criminal threats (§ 422; counts 9 & 11), misdemeanor vandalism (§ 594, subd. (b)(2)(A); count 10), and forcibly dissuading a witness (§ 136.1, subd. (c)(1); counts 12 & 13). The jury found that defendant personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)) in the commission of counts 3 and 8. It found him not guilty of one count of infliction of corporal injury on a spouse (count 6). The trial court found defendant had two prior serious or violent felony convictions (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)). The court also found counts 3, 8, 9, 11, 12, and 13 qualified for habitual criminal sentencing enhancements (five years for each prior serious felony conviction). (People v. Om, supra, 2013 WL 5304166,
Defendant filed a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 requesting that the trial court strike one or both prior strike convictions because (1) postverdict psychological evaluations revealed he suffered from paranoid schizophrenia and polysubstance dependence, and (2) a doubled prison sentence, or a sentence of 25 years to life, would violate the state and federal proscriptions of cruel and/or unusual punishment. The motion did not address the issue of consecutive sentences or suggest that defendant fell outside the spirit of the three strikes law with respect to subordinate counts within the meaning of People v. Garcia (1999) 20 Cal.4th 490. Following argument, the court denied the Romero motion without comment. (People v. Om, supra, 2013 WL 5304166, *10.)
However, the trial court stated that it planned to sentence defendant to a single term of 25 years to life plus enhancements, with the sentences on the remaining counts to run concurrently. The prosecutor objected on the ground, among others, that the offenses were committed on separate occasions against separate victims. The trial court replied that a single term of 25 years to life was appropriate and that the indeterminate term recommended by probation (150 years to life) is "a pretty big number" that seemed like life without parole. However, the trial court did not expressly decide that consecutive terms would constitute cruel and unusual punishment. Thereafter, the trial court sentenced defendant to concurrent terms of 25 years to life plus enhancements as noted above.
The prosecutor insisted that consecutive sentences were required if the offenses were not committed on the same occasion. (Citing § 1170.12, subd. (a)(6) & (7), People v. Felix (2000) 22 Cal.4th 651 & People v. Hendrix (1997) 16 Cal.4th 508 (Hendrix).) The trial court responded, "Understood," and continued with the sentencing. Later, after the trial court stated that sentences on counts 1 and 2 should be stayed pursuant to section 654, the prosecutor reiterated that the foregoing authorities required consecutive sentences on the remaining counts. The prosecutor conceded that the sentences on counts 8 and 9 could run concurrently because they were committed on the same occasion. The court responded that the sentences on counts 9 and 11 (criminal threats) were subject to section 654. (People v. Om, supra, 2013 WL 5304166, *10.)
The trial court sentenced defendant to an aggregate term of 42 years four months to life as follows: On counts 3, 4, 7, 8, 12, and 13, defendant was sentenced to prison for concurrent terms of 25 years to life; counts 3, 8, 12, and 13 were enhanced by 10 years for two prior serious felony convictions (stayed for counts 8, 12, and 13); counts 3 and 8 were enhanced by one year for weapon use (stayed for count 8); counts 4 and 7 were enhanced by one year for a prior prison term (stayed for both counts); concurrent terms of 180 days were imposed on counts 5 and 10; sentences on counts 1, 2, 9, and 11 were stayed pursuant to section 654. In case No. 07-1997, a previously suspended prison sentence of six years four months was ordered to be executed consecutive to this case. The trial court did not assess any fines or fees, but requested that the probation department calculate presentence credits. (People v. Om, supra, 2013 WL 5304166,
The Appeal in Case No. C068420
The People appealed and defendant cross-appealed. As relevant here, the People contended the three strikes law required the trial court to impose consecutive sentences on counts 4, 7, 8, and 12. Defendant contended the concurrent terms were lawful under the three strikes law but the trial court should have explained its sentence (i.e., strike some strikes) consistent with the dictates of section 1385, subdivision (a). (People v. Om, supra, 2013 WL 5304166, *10.)
This court affirmed the judgment of conviction, vacated defendant's sentence, and remanded the matter to the trial court for resentencing as follows:
We concluded that, in imposing sentence on counts 4, 7, 8, and 12, the trial court effectively struck the strike allegations set forth in those four counts for purposes of sentencing without conducting the analysis, on the record and in an accompanying minute order, that section 1385, subdivision (a) requires. (People v. Bonnetta (2009) 46 Cal.4th 143, 145-146, 153 [ordering remand where the trial court had discretion under section 1385 and record showed it intended to exercise such power].) We remanded, directing as follows: "[T]he trial court shall consider in its discretion whether to strike any portion of the sentence pursuant to section 1385 and [People v. Garcia (1999)] 20 Cal.4th 490. The trial court shall set forth a statement of its reasons for striking any strike allegations in the minutes of the court as required by section 1385, subdivision (a). Any strike allegation not so stricken shall be sentenced consistent with the views we have expressed." (People v. Om, supra, 2013 WL 5304166, *12.)
We further concluded the trial court erred when it failed to impose sentence on counts 1, 2, 9, and 11 before staying execution of sentence pursuant to section 654. We remanded and directed the trial court to impose and stay execution of sentence on those four counts. (People v. Om, supra, 2013 WL 5304166, *12.)
We directed the trial court to include a $360 court facilities funding assessment (Gov. Code, § 70373, subd. (a)(1)) and a $360 court security fee (§ 1465.8, subd. (a)(1) [now court facilities fee; $40 per count]) in its oral pronouncement of judgment. (People v. Om, supra, 2013 WL 5304166, *12.)
Finally, we directed the trial court to include the disposition of case No. 07-1997 in the amended abstract of judgment prepared by the court. (People v. Om, supra, 2013 WL 5304166, *13.)
The Current Appeal
On August 18, 2014, defendant filed a second Romero motion requesting that the trial court dismiss one or both of the prior serious or violent felony convictions pursuant to section 1385. During the hearing on the motion, the court rejected defendant's argument that application of the three strikes law constitutes cruel and unusual punishment. The court in denying the motion concluded defendant "would continue to be a risk to the community" when released and "has not taken responsibility, even now, for the crimes he was convicted of."
At resentencing, the court imposed an aggregate state prison sentence consisting of a determinate term of 49 years four months followed by an indeterminate term of 150 years to life as follows:
Case No. CR090109
Count 1 (infliction of corporal injury on a spouse): 25 years to life (stayed pursuant to section 654);
Count 2 (assault by means of force likely to produce great bodily injury): 25 years to life (stayed pursuant to section 654);
Count 3 (assault with a deadly weapon): 25 years to life, plus two consecutive five-year terms for the habitual criminal enhancements, a consecutive one-year term for the personal use of a deadly or dangerous weapon enhancement, and a one-year term for the prior prison term allegation (stayed pursuant to section 654);
Count 4 (child abuse or endangerment): 25 years to life (consecutive), plus a consecutive one-year term for the prior prison term allegation;
Count 5 (misdemeanor child abuse or endangerment): 180 days in county jail (concurrent);
Count 7 (infliction of corporal injury on a spouse): 25 years to life (consecutive), plus a consecutive one-year term for the prior prison term allegation;
Count 8 (assault with a deadly weapon): 25 years to life (consecutive), plus two consecutive five-year terms for the habitual criminal enhancements, a consecutive one-year term for the personal use of a deadly or dangerous weapon enhancement (stayed pursuant to section 654), and a one-year term for the prior prison term allegation (stayed pursuant to section 654);
Count 9 (threats to commit a crime resulting in death or great bodily injury): 25 years to life (stayed pursuant to section 654), plus two consecutive five-year terms for the habitual criminal enhancements (stayed pursuant to section 654), and a one-year term for the prior prison term allegation (stayed pursuant to section 654);
Count 10 (misdemeanor vandalism): 180 days in county jail (concurrent);
Count 11 (threats to commit a crime resulting in death or great bodily injury): 25 years to life (stayed pursuant to section 654), plus two consecutive five-year terms for the habitual criminal enhancements (stayed pursuant to section 654), and a one-year term for the prior prison term allegation (stayed pursuant to section 654);
Count 12 (dissuading a witness): 25 years to life (consecutive), plus two consecutive five-year terms for the habitual criminal enhancements, and a one-year term for the prior prison term allegation (stayed pursuant to section 654);
Count 13 (dissuading a witness): 25 years to life (consecutive), plus two consecutive five-year terms for the habitual criminal enhancements, and a one-year term for the prior prison term allegation (stayed pursuant to section 654).
Case No. CR071887
A consecutive term of six years four months, comprised of a 16-month term for the violation of section 422, and one five-year term for the habitual criminal enhancement.
The court imposed fees and fines, and awarded defendant 4,192 days of presentence custody credit in case No. CR090109 (2,096 actual days plus 2,096 days of conduct credit), and 296 days of presentence custody credit in case No. C071887 (198 actual days plus 98 days of conduct credit). Thereafter, the court modified its award of presentence custody credit in case No. CR090109 to 2,410 (2,096 actual days plus 314 days of conduct credit).
DISCUSSION
I
Imposition of Determinate Sentence in Excess of
Original Aggregate Sentence
Defendant contends the trial court erred by imposing a longer aggregate prison sentence on remand than that originally imposed.
Both parties recognize the general rule that, "[w]hen a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. (People v. Hanson (2000) 23 Cal.4th 355, 357 (Hanson), citing People v. Henderson (1963) 60 Cal.2d 482, 495-497 (Henderson).)
In Henderson, defendant waived trial by jury and pleaded guilty to first degree murder after admittedly killing his victim and mutilating her body. The trial court sentenced him to life imprisonment. (Henderson, supra, 60 Cal.2d at p. 484.) The defendant appealed and the court of appeal reversed and remanded for a new trial. (Ibid.) Following retrial, a jury convicted the defendant of first degree murder and sentenced him to death. (Ibid.) On appeal, he claimed "the prohibition against double jeopardy precludes imposing the death sentence after reversal of the first judgment sentencing him to life imprisonment." (Id. at p. 495.) The appellate court agreed, concluding that when a defendant successfully appeals a criminal conviction, the prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. (Id. at pp. 495-497.)
However, while affirming the Henderson rule, the court in Hanson, supra, 23 Cal.4th 355 noted, "[a] principal exception to application of Henderson arises 'when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.' " (Hanson, at p. 360, fn. 3, quoting People v. Serrato (1973) 9 Cal.3d 753, 764, fn. omitted, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
An unauthorized sentence is one that "could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.)
Defendant contends the so-called Henderson rule applies here because his original sentence, "although inartfully imposed," was an authorized sentence given that the sentencing court stated its reasons for imposition of concurrent sentences.
The People argue primarily that the Henderson rule does not apply because the sentence successfully appealed from by the People was unlawful or unauthorized and this court could find no scenario in which it was proper. In particular, the People argue that, prior to its amendment on January 1, 2015 (after defendant's sentencing), section 1385, subdivision (a) required a written statement of reasons, without which an order expressly dismissing a prior conviction was simply ineffective. (Romero, supra, 13 Cal.4th at p. 532.) We agree and therefore need not address the People's additional argument that, even if the trial court struck the prior strike allegations as to counts 4, 7, 8, and 12, section 667, subdivision (c) still requires consecutive sentences for those counts. (People v. Casper (2004) 33 Cal.4th 38, 40, 43-44 (Casper).)
Section 1170.12, subdivision (a)(6) and (7) provides as follows:
"(a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b), the court shall adhere to each of the following:
* * *
"(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.
"(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law." (§ 1170.12, subds. (a)(6) & (7); People v. Deloza (1998) 18 Cal.4th 585, 588, fn. 3; italics added.)
Section 667, subdivision (c), provides:
"Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following:
* * *
"(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).
"(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law." (§ 667, subds. (c)(6) & (7); Hendrix, supra, 16 Cal.4th at p. 511, fn. 4; see also Casper, supra, 33 Cal.4th at p. 42; italics added.)
"Consecutive sentencing is discretionary under section 667, subdivision (c) only if the current felony convictions are 'committed on the same occasion' or 'aris[e] from the same set of operative facts.' (§ 667, subd. (c)(6) & (7); [citations]; italics added.)" (Casper, supra, 33 Cal.4th at p. 42.) "In addition, section 667, subdivision (c)(6) and (7) applies to 'a current conviction' for more than one 'felony.' " (Ibid.)
The trial court denied defendant's first Romero motion and sentenced him to an aggregate term of 36 years to life, comprised of concurrent 25-years to life terms on counts 3, 4, 7, 8, 12, and 13, plus 10 years for two prior serious felony convictions on count 3 (staying 10-year terms for counts 8, 12, and 13), one year for weapon use on count 3 (staying a one-year term for count 8), and one year for a prior prison term on counts 4 and 7 (both stayed). Sentences on counts 1, 2, 9, and 11 were stayed pursuant to section 654. Concurrent terms of 180 days were imposed on counts 5 and 10. The trial court also ordered that a previously suspended six-year four-month prison sentence in case No. 07-1997 be executed consecutive to the 36 years to life sentence in this case, for a total aggregate sentence of 42 years four months to life.
Once the trial court denied defendant's Romero motion, the three strikes law mandated imposition of consecutive sentences of 25 years to life for each felony " 'not committed on the same occasion, and not arising from the same set of operative facts.' " (§ 667, subd. (c)(6); Casper, supra, 33 Cal.4th at p. 42; accord People v. Lawrence (2000) 24 Cal.4th 219, 222-223, 233 (Lawrence).)
As we previously concluded in defendant's prior appeal, "the pleadings and the evidence did not suggest, [defendant's] trial counsel did not argue, and the trial court did not find or hint, that the current felony convictions were committed on the same occasion or arose from the same set of operative facts. The occasions were manifestly separate: count 3 occurred in November 2007; count 4 in summer 2008; count 7 on December 18, 2008; count 8 on December 24, 2008; and count 12 in January 2009. So, too, were the operative facts; no common act or common criminal conduct formed an element of more than one offense. (Lawrence, supra, 24 Cal.4th at p. 223.) Defendant's apparent claim that the offenses, although separate under the Lawrence analysis, nevertheless occurred on the same occasion because they arose from the same 'continuing course of conduct,' i.e., continuing family dysfunction, is not supported by authority and has no merit." (People v. Om, supra, 2013 WL 5304166,
As we further concluded, "the case was presented on the basis of distinct unlawful acts and the trial court never indicated that it had trouble distinguishing between acts. Even if the trial court could not determine the conduct underlying the jury's verdict with certitude, there was no suggestion that multiple counts occurred on the same occasion or that the same act or criminal conduct constituted an element of more than one offense." (People v. Om, supra, 2013 WL 5304166, *12.)
Defendant claims the original sentence was in fact authorized because the trial court effectively struck the prior strike allegations in counts 4, 7, 8, and 12, failing only to state on the record its reasons for doing so or to enter those reasons in a minute order. His argument is unconvincing.
As this state's highest court held in Romero, a trial court may use section 1385 to strike or vacate a prior strike for purposes of sentencing under the three strikes law, "subject, however, to strict compliance with the provisions of section 1385," (Romero, supra, 13 Cal.4th at p. 504) which mandates that, if the trial court exercises its discretion to strike a prior strike allegation, it must provide a statement of reasons for doing so. (§ 1385, subd. (a); People v. Humphrey (1997) 58 Cal.App.4th 809, 811-812 [provision requiring that reasons for striking prior strike allegation be set forth in an order entered upon the minutes is "mandatory"]; People v. Superior Court (Pipkin) (1997) 59 Cal.App.4th 1470, 1476 [mandatory requirement is "applicable to a trial judge's determination to strike a prior serious felony conviction"].) " 'It is not enough that on review the reporter's transcript may show the trial court's motivation; the minutes must reflect the reason "so that all may know why this great power was exercised." ' [Citations.]" (Romero, supra, 13 Cal.4th at p. 531; accord, People v. Williams (1998) 17 Cal.4th 148, 159.) Failure to set forth the reasons for exercise of the court's discretion to strike a prior strike results in an unauthorized sentence. (See Pipkin, supra, 59 Cal.App.4th at p. 1478 [an order devoid of reasons is "ineffective"]; People v. Orin (1975) 13 Cal.3d 937, 944-945 [' "[I]f the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385. [Citations.]' "].)
Given that counts 4, 7, 8, 12, and 13 were not committed on the same occasion and did not arise from the same set of operative facts, the trial court's failure to impose consecutive sentences on those counts rendered the defendant's original sentence unauthorized. Thus, there was no bar to the imposition of a more severe judgment at resentencing. (Hanson, supra, 23 Cal.4th at p. 360, fn. 3.)
II
Cruel and Unusual Punishment
Defendant contends his sentence is disproportionate to his crimes and therefore constitutes cruel and unusual punishment in violation of the California and United States Constitutions.
A punishment violates the Eighth Amendment of the United States Constitution if it is " 'grossly disproportionate to the severity of the crime.' " (Ewing v. California (2003) 538 U.S. 11, 21 [155 L.Ed.2d 108, 117].) A punishment may amount to cruel or unusual punishment under article I, section 17 of the California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) We construe our state constitutional provision separately from its counterpart in the federal Constitution. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.)
To assess proportionality under the state proscription of cruel or unusual punishment, 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. (Lynch, supra, 8 Cal.3d at pp. 425-427.) The assessment is nearly identical under the federal proscription of cruel and unusual punishment, in which we analyze "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650].)
"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. [Citations.]" (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)
It is well-settled a recidivist may be punished more severely than a first-time offender. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1512 [cruel or unusual punishment under California Constitution].)
Here, an examination of the nature of defendant's offenses and defendant's individual culpability leads us to conclude his sentence is not grossly disproportionate to his crimes, nor does it shock the conscience or offend fundamental notions of human dignity.
Defendant's current crimes began in November 2007, when he punched and choked S.L. and slashed her with a knife, leaving her temporarily black and blue and permanently scarred. For these crimes, defendant was convicted of inflicting corporal injury on a spouse, assault by force likely to produce great bodily injury, and assault with a knife.
In the summer of 2008, defendant became drunk and angry and kicked a bowl of hot soup onto one of his children, S.P., burning and permanently scarring her, then refusing to allow her to seek medical attention. The incident led to defendant's conviction for child abuse or endangerment.
In early-December 2008, defendant punched or kicked S.P. in the stomach, causing her to fall against the wall. The incident led to defendant's conviction for misdemeanor child abuse or endangerment.
On December 18, 2008, defendant, again drunk and upset, punched S.L. in the mouth and ribs, leaving her temporarily black and blue. Later that day, defendant "just started pounding on" S.L., striking her left shoulder, leaving her bruised for over a week. Defendant remarked, "that's post-traumatic stress," and walked out the door. He never apologized and denied having done anything. These incidents resulted in defendant's conviction for inflicting corporal injury on a spouse.
On December 24, 2008, defendant was upset and began drinking. He approached S.L. with a knife and tried to stab her, then put the knife "real close" to her throat and said, "I'm going to kill you," causing S.L. to cry and beg for mercy. The incident resulted in defendant's convictions for assault with a knife and criminal threats.
Between May 2008 and January 2009, defendant kicked and punched walls in the apartment he shared with S.L. The incident led to defendant's conviction for misdemeanor vandalism.
On January 6, 2009, defendant, again drunk and angry, came at S.L. with a kitchen knife and said, "I'm going to kill you if I get locked up and you have something to do with it." The incident led to defendant's convictions for criminal threats and forcible dissuading a witness.
On January 7, 2009, S.L., fearing defendant had gone mad and would kill her, fled the apartment and drove to the police station, where several of her family members (including S.P.) met her. S.L. reported several incidents of defendant's domestic violence to police. When defendant arrived at the police station, S.P. heard defendant say "that if he was going to go to jail that he's going to make sure that something is going to happen to" the family members. Police took a sample of defendant's blood, which tested positive for methamphetamine. The incident led to defendant's conviction for forcible dissuading a witness.
Defendant's crimes, 12 in all, spanned a period of over a year and a half, during which defendant, an adult man, terrorized his victims who were vulnerable women and children, nearly always in their own home. His conduct engendered fear in his victims and oftentimes left them with physical bruises and injuries and lasting physical scars. The offenses were often committed when defendant was drinking, and nearly always resulted from his anger boiling over into physical and verbal attacks. With respect to his alcohol and substance abuse, the trial court aptly noted at the resentencing hearing that, while defendant was diagnosed with posttraumatic stress disorder, "his substance abuse contributed substantially to any mental health issues he had, and . . . [his] use of controlled substances was a primary factor in the state of his mental health" at the time his crimes were committed.
At the time he committed his first offense in this case, defendant was 28 years old. However, his criminal record reveals his abhorrent behavior began years earlier. For instance, he committed his first felony (a violation of Health & Saf. Code, § 11351) when he was just 15 years old. Thereafter, he steadily accumulated a criminal record consisting of felonies, misdemeanors, and probation violations. He committed his first strike in 1998 for attempted first degree burglary, and his second strike in 2007 for criminal threats. As an adult, he spent all but one year of his life in custody, on probation, or on parole. Over time, the level of violence involved in his crimes escalated, as evidenced by the charged offenses as well as the prior uncharged acts of domestic violence, including pointing a gun at S.L. and her children; pounding on S.L. with his fists as she slept, then punching his own mother in the jaw; threatening to burn down the apartment; striking S.L. in the head with a telephone, causing her to bleed; and shooting S.L.'s son, D.L., with a paintball gun.
As for a comparison of defendant's sentence to punishments for more serious offenses in the same jurisdiction (Lynch, supra, 8 Cal.3d at pp. 425-427), defendant argues without any further analysis or authority that his sentence is the functional equivalent of life in prison without the possibility of parole, similar to the punishment meted out for the crime of premeditated murder. While we need not address this argument, made in passing and without analysis or citation to authority holding such a sentence is ipso facto cruel and unusual (Cal. Rules of Court, rule 8.209 (a)(1)(B) [each point in appellate brief must be supported by citation of authority]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [lack of authority or analysis constitutes forfeiture]), we note defendant is not being punished "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.) In that regard, we reiterate the seriousness of defendant's current offenses committed against his own vulnerable family members over a lengthy period of time, as well as his lengthy and uninterrupted criminal history and prior uncharged domestic violence offenses. We also note that, while none of his crimes resulted in the death of his victims, his crimes caused those victims to suffer physically and emotionally over an extended period of time.
Finally, defendant makes no argument regarding a comparison of his sentence with punishments for the same offense in other jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425-427.)
Defendant has not shown a violation of the state or federal constitution's prohibition against cruel and unusual punishment.
III
Proposition 36 Resentencing
In 2012, while defendant's first appeal was pending, the California electorate approved Proposition 36, otherwise known as the Three Strikes Reform Act of 2012 (referred to herein as the Act or Proposition 36). The Act amended sections 667 and 1170.12, and added section 1170.126 establishing a procedure for an offender serving an indeterminate life sentence for a third strike conviction to file a petition for recall of sentence. (§§ 667, subds. (e)(1) & (e)(2)(C), 1170.12, subds. (c)(1) & (c)(2)(C); People v. Yearwood (2013) 213 Cal.App.4th 161, 167 (Yearwood); Teal v. Superior Court (2014) 60 Cal.4th 595, 596-597.) Following the passage of Proposition 36, a defendant, subject to certain exceptions, is no longer subject to a three strikes sentence for a crime that is neither a serious nor a violent felony, and may petition for resentencing as a second strike offender. (§§ 667, subds. (e)(2)(A) & (e)(2)(C), 1170.12, subds. (c)(2)(A) & (c)(2)(C), 1170.126, subd. (a); Yearwood, supra, 213 Cal.App.4th at p. 170.)
In a supplemental brief, defendant contends he is entitled to "automatic application of Proposition 36 as to counts 1, 2, 4, and 7," which are neither serious nor violent, despite the presence of other current serious or violent offenses, pursuant to People v. Johnson (2015) 61 Cal.4th 674 (Johnson).
The People argue, among other things, that defendant is not entitled to "automatic application" of Proposition 36 where, as here, he has not raised the issue by petition in the trial court. Noting this court's conclusion in defendant's previous appeal that "prisoners, such as defendant, who were serving three strikes sentences when Proposition 36 was enacted, must raise the issue by petition in the trial court" pursuant to People v. Yearwood, supra, 213 Cal.App.4th 161 (People v. Om, supra, 2013 WL 5304166, *13), the People argue the doctrine of the law of the case applies, barring defendant from relitigating the issue. (People v. Jurado (2006) 38 Cal.4th 72, 94; People v. Boyer (2006) 38 Cal.4th 412, 441.) We agree with the People.
"Under the law of the case doctrine, when an appellate court ' "states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal . . . ." ' [Citation.]" (People v. Barragan (2004) 32 Cal.4th 236, 246.) "Absent an applicable exception, the doctrine 'requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong.' [Citation.]" (Ibid.) " ' "[T]he point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision." [Citations.]' [Citation.]" (People v. Ramos (1997) 15 Cal.4th 1133, 1161.)
In defendant's prior appeal, this court discussed the issue of "the impact, if any, of section 667, subdivision (e)(2)(C) (Proposition 36 . . .)" and determined that, in order to raise the issue of Proposition 36 resentencing, defendant must petition the trial court for recall of sentence. (People v. Om, supra, 2013 WL 5304166, *13.) Although brief, the point of law was necessary to the determination of defendant's sentencing and, as such, is the law of this case, precluding defendant from relitigating the issue here.
Moreover, application of the rule of law doctrine will not result in an unjust decision. Once the judgment is final and jurisdiction over the cause has been returned to the trial court, defendant is free to timely petition for recall of his sentence even though it has been more than two years since the Act became effective (§ 1170.126, subd. (b) [petition for recall of sentence must be filed within two years after the effective date of the Act or at a later date "upon a showing of good cause"]), as "[t]he pendency of appellate proceedings and consequent lack of jurisdiction over the cause in the trial court would necessarily constitute good cause for a filing delay." (Yearwood, supra, 213 Cal.App.4th at p. 177.)
Defendant's reliance on Johnson does not alter our determination that the law of the case doctrine applies here. In Johnson, a case decided after defendant's first appeal, the California Supreme Court held that "an inmate is eligible for resentencing with respect to a current offense that is neither serious nor violent despite the presence of another current offense that is serious or violent." (Johnson, supra, 61 Cal.4th at p. 695.) However, the court neither addressed nor mentioned the issue of whether a person, like defendant, who committed his offenses before the effective date of the Act but whose convictions are not yet final may have his sentence modified on appeal without first filing a petition for recall in the trial court. As the People aptly note, the defendants in Johnson did file petitions for recall in the trial court and appealed from the denial of those petitions. (Id. at p. 680.)
Finally, we note the People's alternative argument that, even assuming the law of the case doctrine did not apply, defendant's claim would nonetheless fail because the Act applies prospectively only. Therefore, a prisoner like defendant currently serving a three-strikes term must seek resentencing relief through a section 1170.126 recall petition regardless of the finality of the judgment. We agree. As the California Supreme Court recently held, Proposition 36 does not require automatic resentencing of people with judgments that are not yet final. (People v. Conley (2016) 63 Cal.4th 646, 661-662; see, also, Yearwood, supra, 213 Cal.App.4th at pp. 178-179 [amended sections 667 and 1170.12 do not have retroactive effect].)
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MURRAY, J. DUARTE, J.