Opinion
A101742.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER MICHAEL PARRA, Defendant and Appellant.
Christopher Michael Parra appeals following his jury conviction for robbery. He contends that the trial court abused its discretion in declining to strike one of his prior felonies, and that his prison sentence of 35 years to life constitutes cruel and unusual punishment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2000, Juvencio Santos was working by himself at Rosano Jewelers, located within the Montgomery Ward store in Fremont. Before leaving for a break, Santos placed a sign on top of a display case, indicating he would return in 30 minutes. The keys to the locked display cases were kept at the watch repair bench, inside the counter and out of public view. As Santos returned to the jewelry display area after a five to six minute absence, he heard the sound of sliding doors and saw a head duck down inside the counter.
Appellant was crouched inside the enclosed counter area, with his hands inside an open display case, holding a tray of gold rings. When Santos asked what he was doing, appellant stood up, saying: "[P]lease let me go." Santos noticed some jewelry was missing from other display cases, and told appellant to put everything back. Appellant removed some jewelry from his pockets and placed it on top of the case. When Santos told him more jewelry was missing, appellant reacted nervously and tried to leap over the counter. Santos pushed him back. After getting a running start, appellant succeeded in jumping over the counter, and both men fell to the floor.
Appellant struggled to escape as Santos tried to hold him. Santos did not think appellant hit him, but recalled appellant swinging his arms trying to get away. A store cashier who observed the struggle testified: "I had seen, if I could recall, Mr. Parra did land a clean punch on Mr. Santos." After appellant broke free, Santos discovered his lip was bleeding. Santos also saw jewelry scattered on the floor on both sides of the jewelry counter and in the area of the struggle. Three display cases had been opened.
A security guard who saw the struggle also described appellant "flailing his arms" as he tried to escape.
A security guard and the cashier tackled appellant before he reached the exit, and held him until police arrived. As appellant ran, handfuls of gold jewelry had fallen from his pockets. While appellant was on the ground, he pulled more jewelry out of his pockets and pleaded for release. Silver and gold jewelry recovered from appellants person and the surrounding area was valued at over $20,000 retail. Two sets of keys were found in the area where appellant had been tackled. One set fit the jewelry display cases, and had been taken from the watch repair bench. The second set belonged to a car in the parking lot registered to appellants girlfriend. Eleven bags of methamphetamine, two photos of appellant, and a utility bill in his name were found in the car. The girlfriend denied ownership of the methamphetamine. Two single-edge razor blades were found on appellants person during the ensuing booking search.
Santos testified the jewelry was sold by weight, with gold priced at approximately $23 per gram retail, and $ 8.50 to $14 wholesale. Silver was priced at approximately $2.50 per gram retail, and $.80-$1.25 wholesale. The silver jewelry taken from appellants person weighed approximately 1619 grams, and the gold approximately 174 grams. The remaining jewelry that had been removed from the display cases included approximately 503 grams of gold rings and 513 grams of silver rings.
Appellant was charged with robbery, grand theft, and possession of methamphetamine for sale. The information also alleged appellant had prior felony convictions for statutory rape, possession of dangerous drugs, and two burglaries constituting strikes. Appellants first jury trial resulted in a mistrial. A second jury found appellant guilty of robbery, but not guilty on the methamphetamine charge. The court found the prior conviction allegations to be true, and denied appellants motion to dismiss a prior conviction pursuant to Penal Code section 1385. Appellant was sentenced to 35 years to life in state prison, and timely appealed.
Gang enhancements were also alleged, but later dismissed on the prosecutions motion.
Appellant waived double jeopardy, and declined an offer to plead before the second trial.
The jurys verdict did not address the grand theft count. Counsel stipulated that the jury need not reach a verdict on that count, in view of the robbery verdict.
DISCUSSION
Appellant first contends the trial court abused its discretion in refusing to strike one of his prior burglary convictions. In exercising its discretion and balancing the defendants constitutional rights with societys legitimate interests, 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 , 17 Cal.4th 148, 161.) No weight may be given to factors extrinsic to the Three Strikes scheme. (Id . at pp. 160-161.)
In a decision recognizing the trial courts authority to strike a prior conviction allegation for purposes of sentencing as to one current count but not as to another, our Supreme Court has held that "a defendants sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. [Citation.]" (People v. Garcia (1999) 20 Cal.4th 490, 500.) And in holding that a trial court may exercise its discretion "to sentence certain crimes as misdemeanors rather than felonies, thereby taking them outside the scope of the Three Strikes law," the high court has stated "that `[w]hile a defendants recidivist status is undeniably relevant, it is not singularly dispositive. [Citations.]" (Id . at p. 501, citing People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 973.) The trial courts ruling is reviewed for abuse of discretion, a standard that is "deferential" but "not empty." (Williams, supra, 17 Cal.4th at p. 162.) The appellate court must determine "whether the ruling in question `falls outside the bounds of reason under the applicable law and the relevant facts [citations]." (Ibid .)
Appellant contends the circumstances of his current offense and the particulars of his background, character and prospects place him outside the spirit of the Three Strikes scheme. He argues that his prior strikes were both burglaries, the limited violence of his current offense occurred during his efforts "to flee the scene of the aborted theft," and his personal history included "one of the most abysmal childhoods one could dare imagine," including a drug-addicted mother who was constantly in and out of custody, leaving appellant and his younger brother with various family members and eventually homeless at the ages of 13 and 10 respectively. Appellants brother, aunt, and uncle testified he was not a violent person, and had acted protectively toward family members. Appellant argues his poor history on parole stemmed from his use of drugs and alcohol, and he had no history of physical violence other than "the minor scuffling when he struggled to get away in this case." He also contends the sentencing court erred in concluding the present crime involved planning and sophistication, and in considering the jewelrys full retail value, including items found outside the display cases but not on appellants person. Appellant maintains that even if the court had struck one of his prior convictions, he could still have been sentenced to 19 years, a sentence more appropriate to the spirit of the Three Strikes scheme than the one he received in this case.
While reasonable minds might differ as to the propriety of striking one of appellants prior convictions for sentencing purposes under the circumstances presented here, we conclude the trial court did not abuse its discretion in declining to do so. (See People v. Romero (2002) 99 Cal.App.4th 1418, 1434.) Appellants overall criminal history, his poor performance on parole and probation, and the fact that this was apparently a planned crime, support the sentence. Although the burglaries occurred approximately nine years before appellants current offense, he had subsequently been convicted of possession of a controlled substance, and had suffered multiple failures to appear and repeated revocations of probation. Appellant had reportedly failed to complete two residential alcohol rehabilitation programs, and was on parole at the time of the current offense. The trial court acknowledged appellants difficult childhood as one of several factors in mitigation, but found the circumstances in aggravation substantially outweighed them. The trial courts ruling did not fall "outside the bounds of reason" under the relevant law and facts. (Williams, supra, 17 Cal.4th at p. 162.)
While appellant seeks to characterize his current offense as a crime of opportunity, we note he recovered the key, which was hanging out of public view, and entered the display area after the clerk had left for a break, indicating at least some degree of planning and/or sophistication. We also note that California Rules of Court, rule 4.421(a)(9) lists as an aggravating factor the fact that "[t]he crime involved an attempted or actual taking or damage of great monetary value."
While in prison, appellant had also reportedly forfeited good conduct credits and been transferred to the secured housing unit at Pelican Bay. According to the probation report, appellant admitted being a member of the Northern Structure prison gang, but maintained he had only joined for protection when in prison. Appellant was also convicted of statutory rape of a 12-year-old girl in 1989.
In his reply brief, appellant argues it was an abuse of discretion not to reduce his sentence to 19 years to life, when a 16-year sentence had been previously offered (albeit declined by appellant). Appellant notes he was found not guilty on the methamphetamine charge, and maintains he should not be so heavily punished for choosing to go to trial rather than accepting the 16-year plea bargain. He cites no legal authority to support his position, however, nor are we persuaded that a rejected plea offer somehow operates to limit the trial courts sentencing powers after defendant has been convicted by a jury. We also note this argument was not raised in appellants opening brief, nor does he claim to have presented it to the trial court.
Appellant also contends his sentence violates the cruel and/or unusual punishment clauses of the federal and state constitutions. Assuming, arguendo, this argument was not waived by appellants failure to raise it below, it is without merit. It is well established that in order to violate the cruel and unusual punishment proscriptions of the federal and California state constitutions, the sentence imposed must be so extreme and grossly disproportionate to the crime for which it is inflicted as to shock the conscience and offend fundamental notions of human dignity. (Lockyer v. Andrade (2003) 538 U.S. 63, 123 S.Ct. 1166, 1172-1173; Ewing v. California (2003) 538 U.S. 11, 123 S.Ct. 1179, 1185-1187 (Ewing); Harmelin v. Michigan (1991) 501 U.S. 957, 996-997, 1001 [Kennedy, J., concurring in part and concurring in the judgment]; In re Lynch (1972) 8 Cal.3d 410, 424.) The burden of demonstrating such disproportionality rests with the defendant. (People v. Wingo (1975) 14 Cal.3d 169, 174; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) "Findings of disproportionality have occurred with exquisite rarity in the case law." (Weddle , supra, at p. 1196.)
Appellants sentence was not grossly disproportionate in light of his current offense, his criminal history, and his repeated failure to take advantage of opportunities for rehabilitation. The robbery itself involved actual violence, and created the potential for more serious injury. Appellants criminal history included a series of convictions covering many years, as well as repeated failures to comply with the terms of probation and parole. As the court noted at sentencing, appellant "has been either on probation or parole or has been actually incarcerated since 1989."
"A long line of Supreme Court cases ha[s] held that recidivism is a proper sentencing factor. [Citations.]" (Romero, supra, 99 Cal.App.4th at p. 1431.) " `States have a valid interest in deterring and segregating habitual criminals [citation]" and the courts have a longstanding "tradition of deferring to state legislatures in making and implementing such important policy decisions." (Ewing, supra, 123 S.Ct at p. 1187.) As the Supreme Court has observed: "To be sure, Ewings sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California `was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State. [Citation.] Ewings is not `the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. [Citation.]" (Id . at p. 1190.)
Appellant seeks to distinguish Ewing, supra, on the grounds that the defendant in that case had four prior strikes rather than two, and had been previously convicted of battery and robbery using a knife. (123 S.Ct. at p. 1184.) Appellant also points out that defendant in Romero, supra, had been previously convicted of lewd conduct with a child under the age of 14, and misdemeanor battery on a police officer. (99 Cal.App.4th at p. 1424.) Appellants criminal history was not substantially different, however, including a conviction for statutory rape as well as his current conviction for robbery. Nor is the lack of comparative information about Romeros childhood determinative here.
On this record, we conclude that appellants punishment neither shocks the conscience, nor qualifies as a sentence that is grossly disproportionate to the crime. This conclusion is consistent with authorities in which these sentences were found not to be cruel and unusual: two consecutive 25-years-to-life terms following a "third strike" conviction for stealing five videotapes worth approximately $150 (Lockyer v. Andrade, supra, 123 S.Ct. at pp. 1172-1173); 25-years-to-life under three strikes law for stealing three golf clubs (Ewing , supra, 123 S.Ct. at pp. 1185-1187); life sentence under recidivist statute for obtaining $120 by false pretenses (Rummel v. Estelle (1980) 445 U.S. 263, 266, 285). The sentence in this case thus did not constitute cruel and unusual punishment under either the federal or the state constitutions.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Pollak, J.