Opinion
[Opinion certified for partial publication. ] [Reprinted without change for tracking pending review and disposition by the Supreme Court.]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 3 through 8.
See footnote, ante, page 1958.
Superior Court of Los Angeles County, No. SA019408, Leslie W. Light, Judge. [Copyrighted Material Omitted] COUNSEL
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Kenneth C. Byrne, Jaime L. Fuster and Susan C. Diamond, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
NOTT, J.
William Mark O'Roark appeals from the judgment entered following a jury trial that resulted in his conviction of three counts of second degree robbery (Pen.Code, § 211) with findings that he used a firearm in the commission of each robbery (Pen.Code, § 12022.5, subd. (a)). The jury also found that he had three prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b) through (i) (the legislative version of the three strikes law), that he had three prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a), and that he served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The jury's findings that appellant had three prior felony convictions under the three strikes law and that he had three prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a), involved the same prior felony convictions. Appellant was initially sentenced to a determinate term of 19 years followed by a term of 25 years to life. The following day, the trial court vacated that sentence on the grounds it did not comply with the three strikes law, and the court sentenced appellant to a determinate term of 27 years, consisting of three 4-year use enhancements and three 5-year prior serious *872 felony conviction enhancements, followed by three consecutive terms of 25 years to life. The court stayed the prior prison term enhancements.
were enacted as urgency legislation, effective March 7, 1994. In the November 8, 1994, General Election, Proposition 184, the three strikes initiative, was approved by the voters. The three strikes initiative is codified as Penal Code section 1170.12, which contains provisions that are virtually identical to provisions of Penal Code section 667, subdivisions (b) through (i). The present offenses occurred after the effective date of the legislative version of the three strikes law but before passage of Proposition 184. Subdivisions (b) through (i) of Penal Code section 667
Facts
On September 12, 1994, appellant placed a paper bag on a conveyor belt at a Ralph's supermarket in Castaic, pulled the handle of a gun out of the bag, and robbed a cashier of the money and food stamps that were in a cash register. On September 15, 1994, appellant placed candy and a paper bag on a conveyor belt at a Ralph's supermarket in Los Angeles, pulled the handle of a gun out of the bag, and again robbed a cashier of the money in a cash register. He then told the cashier not to say anything for the next 15 minutes "or else."
On the night of September 17, 1994, appellant placed candy, a magazine, and a paper bag on a conveyor belt of another Ralph's supermarket in Los Angeles. After a cashier rang up the amounts for the candy and magazine, appellant showed the cashier a gun in the bag and demanded the money in the cash register. Because she was nervous, the cashier had difficulty opening the cash register. Appellant repeatedly said something like " '[C]ome on, hurry up, this is real, bitch.' " The cashier eventually opened the cash register and gave appellant the money that was in the register. Appellant ordered her not to say anything or move for five minutes. She immediately notified the manager. When appellant was arrested later that night, police found an unloaded gun in a brown paper bag in the car in which appellant had fled from the third Ralph's supermarket.
Contentions
Appellant contends that, because one of his prior serious felony convictions occurred before the effective date of Penal Code section 1192.7 and another of his prior serious felony convictions was for a crime not listed as a serious felony in Penal Code section 1192.7, subdivision (c), when that conviction occurred, the trial court erred in sentencing him under Penal Code section 667, subdivision (e) (2) (A). He also contends that his sentence constitutes cruel and unusual punishment under the federal Constitution and cruel or unusual punishment under the California Constitution. In the published portion of this opinion, we reject both contentions.
Appellant further contends (1) that the trial court erred in concluding it had no discretion to strike a finding of a qualifying prior felony conviction under the three strikes law on its own motion; (2) that, if any clause in the three strikes law precludes the trial court from exercising discretion to strike a finding of a qualifying prior felony conviction, that clause violates the doctrine of separation of powers; (3) that the trial court erred in concluding it was required to sentence appellant to three consecutive terms of twenty-five years to life; (4) that use of the same prior felony convictions to calculate the minimum term of the indeterminate sentence for each current felony conviction and to impose the prior serious felony enhancements constituted an improper dual use and violated Penal Code section 654; (5) that the three strikes law is unconstitutionally vague on its face and as applied to appellant; and (6) that the three strikes law was not a valid urgency measure. We reject each of these contentions in the portion of the opinion that is not certified for publication. Discussion
1. Qualifying Status of 1978 and 1987 Convictions
The jury found that appellant suffered the following three prior felony convictions, which were alleged as qualifying prior felony convictions under the three strikes law: a November 8, 1978, conviction for robbery; an October 26, 1983, conviction for robbery with use of a firearm; and a March 9, 1987, conviction for bank robbery.
Penal Code section 667, subdivision (d), provides in pertinent part: "Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as: [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive: [¶] (A) The suspension of imposition of judgment or sentence. [¶] (B) The stay of execution of sentence. [¶] (C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony. [¶] (D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison...." (Italics added.)
Penal Code section 667, subdivision (h), provides: "All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993." On that date, Penal Code section 1192.7, subdivision (c) (19), provided that "robbery or bank robbery" was a serious felony. Although Penal Code section 1192.7 was amended in 1993, those amendments did not affect subdivision (c) (19) of that section.
Penal Code section 1192.7, subdivision (d), defines bank robbery as that term is used in Penal Code section 1192.7, subdivision (c) (19). Penal Code section 1192.7, subdivision (d), currently defines bank robbery in the same manner as it did on June 30, 1993, and provides: "As used in this section, 'bank robbery' means to take or attempt to take, by force or violence, or by intimidation from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association. [¶] As used in this subdivision, the following terms have the following meanings: [¶] (1) 'Bank' means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation. [¶] (2) 'Savings and loan association' means any federal savings and loan association and any 'insured institution' as defined in Section 401 of the National Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act. [¶] (3) 'Credit union' means any federal credit union and any state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union Administration."
Penal Code section 1192.7 was added by the passage of the initiative measure Proposition 8 in the June 8, 1982, election. Appellant contends that his 1978 robbery conviction does not qualify as a strike because it was sustained before the effective date of Penal Code section 1192.7. He also contends that his 1987 bank robbery conviction does not qualify as a strike because bank robbery was not added to the list of serious felonies in Penal Code section 1192.7, subdivision (c), until 1988. (Stats. 1988, ch. 432, section 2, p. 1815.) In support of these contentions, appellant relies on our statement in People v. Green (1995) 36 Cal.App.4th 280 [42 Cal.Rptr.2d 249] that "[w]e ... interpret the phrase in [Penal Code] section 667, subdivision (d) (1) that '[t]he determination [as to whether a prior offense qualifies as a "strike"] ... shall be made upon the date of that conviction' to mean that the court is presently required to look backward to see if, at the time of the conviction of the past offense, such past offense qualified as a serious or violent offense under [Penal Code] section 1192.7, subdivision (c) or [Penal Code] section 667.5, subdivision (c)." (Id. at p. 283.) Appellant misreads our holding.
In People v. Green, supra, 36 Cal.App.4th at pages 282-283, we held that a prior serious or violent felony conviction that occurred before the effective date of the three strikes law may qualify as a strike. We observed that to interpret Penal Code section 667, subdivision (d) (1) as precluding prior offenses that occurred before the effective date of the three strikes law from qualifying as strikes would "lead to an irrational result and frustrate the intent of the Legislature to initiate an immediate plan of severe punishment for repeat offenders." (People v. Green, supra, 36 Cal.App.4th at p. 283.) Because the prior burglary conviction in that case occurred in 1987, after the effective date of Penal Code section 1192.7, we were not presented with and did not decide the issue of whether a prior serious felony conviction sustained before the effective date of Penal Code section 1192.7 could constitute a strike under the three strikes law.
In Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1310-1311 [44 Cal.Rptr.2d 144], the Fifth Appellate District held that prior serious felony convictions sustained before the effective date of Penal Code section 1192.7 may qualify as strikes. The court stated: "The Three Strikes law ... applies to felony convictions which were neither 'serious' nor 'violent' felonies at the time of conviction, but which ... fit the definition of a 'serious felony' or 'violent felony' on the relevant date [June 30, 1993]." (Gonzales v. Superior Court, supra, 37 Cal.App.4th at p. 1311, 44 Cal.Rptr.2d 144.) The court explained that Penal Code section 667, subdivision (d) (1), does not require a contemporaneous characterization of a conviction as a serious or violent felony conviction. (Gonzales v. Superior Court, supra, 37 Cal.App.4th at p. 1308, 44 Cal.Rptr.2d 144.) Subdivision (d) (1) insures that, unless at the initial sentencing the court determined that the crime was a misdemeanor, post conviction events will not transform a felony into a misdemeanor. (Gonzales v. Superior Court, supra, 37 Cal.App.4th at p. 1308, 44 Cal.Rptr.2d 144; accord, People v. Sipe (1995) 36 Cal.App.4th 468, 478, 42 Cal.Rptr.2d 266; People v. Anderson (1995) 35 Cal.App.4th 587, 600-601, 41 Cal.Rptr.2d 474.) In People v. Turner (1995) 40 Cal.App.4th 733, 738- 739, 47 Cal.Rptr.2d 42, Division Five of this court followed Gonzales and held that a 1979 robbery conviction qualified as a prior strike under the three strikes law.
The court noted that Penal Code section 667, subdivision (h) of the three strikes law "freezes the list of qualifying felonies as of June 30, 1993. [Citation.]" (Gonzales v. Superior Court, supra, 37 Cal.App.4th at p. 1311, fn. 7.)
In Turner, the court stated: "[W]e conclude section 667, subdivisions (b)-(i) are not limited to convictions that, when experienced by a felon, qualified as 'serious' or 'violent' felonies. The pertinent issue is whether the prior crime was a 'serious' or 'violent' felony when the new offense for which the defendant is on trial was committed." (People v. Turner, supra, 40 Cal.App.4th at p. 739, fn. omitted.) As the Gonzales court noted, however, in view of the language in Penal Code section 667, subdivision (h), the pertinent issue is whether the prior crime was a serious or violent felony on June 30, 1993. (Gonzales v. Superior Court, supra, 37 Cal.App.4th at p. 1311.)
Based on the reasoning of Gonzales, we hold that a prior serious felony conviction sustained before the effective date of Penal Code section 1192.7 may qualify as a strike if that felony was in the list of serious felonies in Penal Code section 1192.7, subdivision (c), on June 30, 1993. Based on that same reasoning, we also hold that a prior serious felony conviction sustained before that offense was added to the list of serious felonies in Penal Code section 1192.7, subdivision (c), may qualify as a strike if that felony was in the list of serious felonies in Penal Code section 1192.7, subdivision (c), on June 30, 1993. Because robbery and bank robbery were serious felonies on June 30, 1993, the trial court properly determined that appellant's 1978 robbery conviction and 1987 bank robbery conviction could be used as strikes under the three strikes law.
2. Cruel and/or Unusual Punishment
Appellant contends his sentence constitutes cruel and unusual punishment under the United States Constitution and cruel or unusual punishment under the California Constitution because in each current robbery no more than a few hundred dollars was taken and no one was injured. We disagree. When the current offenses were committed, appellant was 38. According to the probation reports, he was convicted of disturbing the peace and petty theft in 1975, possession of marijuana in 1976, being under the influence of a controlled substance and taking or driving a vehicle without the owner's consent in 1977, burglary and robbery in 1978, driving under the influence in 1981, burglary in 1982, being under the influence of a controlled substance, unlawful flight by a felon, and robbery with use of a firearm in 1983, and bank robbery in 1987. He committed some of the offenses while on probation. He told the probation officer he had been using controlled substances since he was 14. Appellant was released from federal custody in July 1994. Appellant was on parole when he committed the current offenses and, according to the probation officer, there was a federal fugitive warrant for appellant when he was arrested.
In the probation reports, it was stated that approximately $600 in cash and food stamps was taken in the September 12, 1994, robbery, approximately $500 was taken in the September 15 robbery, and approximately $400 was taken in the September 17 robbery. Each victim was extremely frightened.
Appellant argued at the initial sentencing hearing that the sentence prescribed under the three strikes law was cruel and unusual punishment because the mandatory sentence under the three strikes law was disproportionate to his individual culpability. He did not argue that the required sentence was disproportionately severe when compared with punishments prescribed in California for more serious offenses or punishments prescribed in other jurisdictions for robbery with use of a firearm by a recidivist with a criminal history similar to that of appellant. By failing to challenge the prescribed sentence on those latter grounds, appellant waived any contention that his sentence is cruel and unusual punishment in violation of the federal Constitution or cruel or unusual punishment under the California Constitution on those bases. (Cf. People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [44 Cal.Rptr.2d 796].)
Appellant's contention that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution is unavailing. In Rummel v. Estelle (1980) 445 U.S. 263 [63 L.Ed.2d 382, 100 S.Ct. 1133], the defendant was sentenced to life in prison under a recidivist statute because he had obtained $120.75 by false pretenses after having previously been convicted of fraudulently using a credit card to obtain $80 worth of goods or services and passing a forged check in the amount of $28.36. The court held that the sentence did not constitute cruel and unusual punishment. (Id. at pp. 264-266, 284-285 [63 L.Ed.2d at pp. 385-386, 397-398].) The court explained: "[The] primary goals [of a recidivist statute] are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. [¶] Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Id. at pp. 284-285 [63 L.Ed.2d at p. 397].)
In Harmelin v. Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836, 111 S.Ct. 2680], the defendant was sentenced to life without possibility of parole for possessing 672 grams of cocaine. Two justices concluded that the Eighth Amendment of the United States Constitution does not require that a sentence for a noncapital crime be proportionate to the crime committed. (Harmelin, supra, at pp. 985-994 [115 L.Ed.2d at pp. 858-864] (opn. of Scalia, J., joined by Rehnquist, C. J.).) Three other justices concluded that the Eighth Amendment forbids only those sentences that are " 'grossly disproportionate' " to the crime. (Harmelin, supra, at p. 1001 [115 L.Ed.2d at p. 869] (opn. of Kennedy, J., joined by O'Connor, J., & Souter, J.).) Justice Kennedy concluded that the defendant's sentence was not grossly disproportionate to his crime. (Id. at p. 1005 [115 L.Ed.2d at pp. 871-872].)
In People v. Kinsey (1995) 40 Cal.App.4th 1621 [47 Cal.Rptr.2d 769], the defendant was convicted of attempted infliction of injury on a cohabitant, battery, and assault after having previously suffered two attempted robbery convictions and one robbery conviction. He was sentenced to 29 years to life. In holding that sentence did not constitute cruel and unusual punishment, Division Seven of this court stated: "Appellant is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses. [Citation.]" (Id. at p. 1630.)
In the present case, we conclude that appellant's sentence is not grossly disproportionate to the current offenses when viewed in light of his recidivist history and that the sentence therefore does not constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.
A punishment may violate the prohibition of article I, section 17 (formerly section 6), of the California Constitution against cruel or unusual punishment if, although not cruel or unusual in its method, "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 [105 Cal.Rptr. 217, 503 P.2d 921], fn. omitted.) In Lynch the court noted three techniques that may be used to determine whether a punishment is cruel or unusual: an examination of the nature of the offense and the offender; a comparison of the challenged penalty with punishments prescribed in California for more serious offenses; and a comparison of the challenged penalty with punishments prescribed for the same offense in other jurisdictions. (Id. at pp. 425-427.) A determination whether a punishment is cruel or unusual may be based solely on an examination of the nature of the offense and the offender. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, 1198-1200 [2 Cal.Rptr.2d 714].) A defendant who relies on either of the other two factors mentioned in Lynch has the burden of establishing that his punishment is greater than that imposed for more serious offenses in California or that similar offenses in other jurisdictions do not carry punishments that are as severe. (In re DeBeque (1989) 212 Cal.App.3d 241, 254-255 [260 Cal.Rptr. 441].) Here appellant has not expressly relied on either of the second two factors mentioned in Lynch and has not established that such external disproportionality exists.
In People v. Ingram (1995) 40 Cal.App.4th 1397 [48 Cal.Rptr.2d 256], the defendant was convicted of two counts of residential burglary with findings he had suffered two prior convictions for residential burglary and had served a prior prison term for receiving stolen property. Although no one was injured during his commission of either of the current burglaries, the court concluded that, in view of his long recidivist history and the seriousness of his past and current offenses, the statutorily required sentence of 11 years followed by 2 consecutive terms of 25 years to life would not constitute cruel or unusual punishment. (People v. Ingram, supra, 40 Cal.App.4th at pp. 1414-1416.)
We do not find appellant's sentence to be cruel or unusual punishment. By committing three robberies with the use of a firearm while he was on parole, appellant showed no intention of abiding by the laws of this state. In view of appellant's prior robberies, his other prior offenses, and his commission of three armed robberies while he was released on parole, application of the three strikes law in this case does not shock the conscience or offend fundamental notions of human dignity. (Cf. People v. Kinsey, supra, 40 Cal.App.4th at pp. 1630-1631; People v. Ingram, supra, 40 Cal.App.4th at pp. 1414-1416.) 3. -8.
Disposition
The judgment is affirmed.
Boren, P. J., and Zebrowski, J., concurred.