Opinion
H042826
11-01-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID MICHAEL PIETRZAK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. F1452071, C1492689, C1504492)
Defendant David Michael Pietrzak appeals the indeterminate third strike sentence imposed after he was convicted by plea of three counts of first degree burglary (Pen. Code, §§ 459, 460) and one count of theft from an elderly person (Pen. Code, § 368, subd. (d)). Defendant contends that the trial court erred by denying his motion to strike his prior strike convictions (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)), and that his resulting sentence is cruel and unusual under the United States and California constitutions. Defendant further argues, and the People concede, that the trial court erred by imposing a life sentence for theft from an elderly person and by imposing prior serious felony conviction enhancements (Pen. Code, § 667, subd. (a)(1)) for prior convictions where charges had been brought and tried together. For the reasons stated here, we will accept the People's concessions but find no other error. We will reverse the judgment and remand the matter for resentencing.
I. TRIAL COURT PROCEEDINGS
This appeal arises from a global disposition of three complaints filed against defendant involving three residential burglaries he committed within less than a month in 2014. We base our factual summaries on the probation report.
A. CASE NO. F1452071
Morgan Hill police officers responded to a call that someone had seen defendant leaving a house with a large backpack. Officers noticed that the house's kitchen window was broken and the house had been ransacked. The house's residents arrived while the police were still there. They reported missing items worth over $4,000. Defendant later admitted the Morgan Hill burglary when he was arrested for another offense. Defendant was charged with first degree burglary. (Pen. Code, §§ 459, 460; unspecified references are to this Code.) The complaint alleged five prior strike convictions (§ 667, subds. (b)-(i)); five prior serious felony convictions (§ 667, subd. (a)(1)); and that defendant had served one prior prison term (§ 667.5, subd. (b)).
B. CASE NO. C1504492
The occupant of a residence in Los Gatos reported that his home had been burglarized. The occupant told responding police officers that someone had taken jewelry, knives, and cash. DNA from a water bottle that had been left at the residence matched defendant's DNA. Defendant was charged with one count of first degree burglary (§§ 459, 460) and one count of theft from an elderly person (§ 368, subds. (d), (g)) because the burglary victim was over 65 years old. The complaint alleged seven prior strike convictions (§ 667, subds. (b)-(i)) and three prior serious felony convictions (§ 667, subd. (a)(1)).
C. CASE NO. C1492689
A homeowner reported to the San Jose Police Department that someone had thrown a rock through a sliding glass door in the backyard and stolen a safe from the master bedroom containing watches and several sets of cufflinks. An officer identified defendant as the burglar after comparing video footage with a crime bulletin containing defendant's picture. When defendant was arrested and questioned, he admitting using methamphetamine and committing 10 to 15 burglaries in San Jose in the preceding months. Defendant stated that although he did not care if he encountered anyone in the homes, he took precautions to try to ensure no one was home. Defendant was charged with first degree burglary (§§ 459, 460). The complaint alleged six prior strike convictions (§ 667, subds. (b)-(i)); six prior serious felony convictions (§ 667, subd. (a)(1)); and that defendant had served one prior prison term (§ 667.5, subd. (b)).
D. PLEAS AND ROMERO MOTION
Defendant pleaded no contest to the four felonies charged in the three cases. In the San Jose case (No. C1492689), defendant admitted all special allegations. In the Morgan Hill case (No. F1452071), the complaint was amended to correct the county listed for two of the enhancements, and defendant admitted all special allegations as amended. In the Los Gatos case (No. C1504492), the trial court granted the prosecution's oral motion to strike one of the prior strike convictions as duplicative, amend one of the prior serious felony convictions from first degree burglary to attempted first degree burglary, and amend one of the prior strike convictions from first degree burglary to attempted first degree burglary. Defendant admitted all special allegations as amended. Four of defendant's prior serious felony convictions alleged in case Nos. F1452071 and C1492689 had been charged in a single case.
Defendant argued in a Romero motion that he was outside the spirit of the three strikes law because he had remained out of trouble for an extended period of time before committing his current offenses. After hearing a statement from defendant and argument by counsel, the trial court denied the motion. The court stated defendant appeared to be working proactively to address his addiction, but he also had an extensive criminal record of 17 felonies (including the four on which this appeal is based) and 11 misdemeanors. The court found that defendant's prospects for complying with the law upon release were limited because, with the exception of a period of sobriety, defendant had consistently demonstrated he was "not capable of conforming his behavior when confronted by a down cycle in his personal life." The court characterized defendant's present crimes as "fairly typical first degree burglaries," but noted that the court's job was "to follow the law."
During the Romero hearing, the court referenced a 2011 case where defendant was apparently initially charged with first degree burglary, which was later reduced to receiving stolen property (§ 496). Defense counsel suggested that the reduction might have been the "result of a 3K committee decision." The court asked the prosecutor if "the 2011 disposition was as a result of the decision ... of your internal committee," suggesting the amendment to a non-serious felony was made for defendant's benefit to prevent him from being convicted of a third strike. The prosecutor did not have the file, but stated that the court's explanation "seems reasonable." The court listed the "extraordinary benefit of a previous ... ruling by the DA's office" as an additional reason for denying the Romero motion.
E. SENTENCING
In case No. F1452071, the trial court sentenced defendant to an indeterminate term of 32 years to life, consecutive to a determinate term of 25 years for five prior serious felony convictions (the prior prison term enhancement was stayed). In case No. C1504492, the trial court sentenced defendant to an indeterminate term of 25 years to life for first degree burglary (the court imposed and stayed (§ 654) a separate indeterminate term of 25 years to life for theft from an elderly person), consecutive to a determinate term of 15 years for three prior serious felony convictions. In case No. C1492689, the trial court sentenced defendant to 37 years to life for first degree burglary, consecutive to a determinate term of 31 years for one prior prison term and six prior serious felony convictions. Defendant's aggregate sentence was an indeterminate term of 94 years to life, consecutive to a determinate term of 71 years.
II. DISCUSSION
Defendant argues the trial court abused its discretion by denying his Romero motion and contends that the sentence imposed was cruel and unusual in violation of the federal and California constitutions. In addition, the People concede that the trial court committed certain sentencing errors that require the case to be remanded for resentencing.
A. CONCEDED SENTENCING ERRORS
1. Theft from an Elderly Person is Not a Serious or Violent Felony
Defendant argues, and the People concede, that the trial court erred by imposing an indeterminate sentence for defendant's theft from an elderly person conviction in case No. C1504492. Theft from an elderly person (§ 368, subd. (d)) is neither a violent felony nor a serious felony. (See §§ 667.5, subd. (c), 1192.7, subd. (c).) When a defendant with two or more prior serious or violent felony convictions is sentenced on a felony that is neither serious nor violent, the defendant must serve a determinate term that is twice the ordinary term. (§ 667, subd. (e)(1), (e)(1)(C).) Section 368, subdivision (d)(1) calls for a sentence of two, three, or four years. On remand defendant will therefore be subject to a determinate term of four, six, or eight years for theft from an elderly person (which must then be stayed (§ 654)).
2. Certain Enhancements Must be Stricken
Defendant argues, and the People concede, that the trial court imposed an unauthorized number of enhancements (§ 667, subd. (a)(1)) because four of defendant's prior serious felony convictions were brought and tried together. Section 667, subdivision (a)(1) mandates a five-year enhancement for each prior serious felony conviction "on charges brought and tried separately." Where the record shows the charges were made in a single complaint, only one five-year enhancement is allowed regardless of the number of serious felonies contained in that complaint. (In re Harris (1989) 49 Cal.3d 131, 136-137.)
a. Case No. F1452071
In case No. F1452071, four of the five prior serious felony convictions that defendant admitted were brought and tried in a single complaint. We agree with the parties that the trial court should have imposed only two prior serious felony conviction enhancements in case No. F1452071, for a total of 10 years. Because the trial court used an unauthorized number of prior serious felony convictions to determine the greatest minimum term in calculating defendant's indeterminate term (§ 667, subd. (e)(2)(A)(iii)), we will remand the case for resentencing. The parties agree that on remand, the sentence for case No. F1452071 should be an indeterminate term of 25 years to life for first degree burglary (§ 667, subd. (e)(2)(A)(ii)), consecutive to a determinate term of 10 years for two prior serious felony convictions (§ 667, subd. (a)(1)). The one-year prior prison term enhancement will remain stayed.
b. Case No. C1492689
In case No. C1492689, four of the six prior serious felony convictions that defendant admitted arose from a single complaint. We agree with the parties that the trial court should have imposed only three prior serious felony conviction enhancements in case No. C1492689, for a total of 15 years. Like the sentence in case No. F1452071, the trial court used an unauthorized number of prior serious felony convictions to calculate defendant's indeterminate term, and we will remand the case for resentencing. The parties agree that on remand defendant is to receive an indeterminate term of 25 years to life for first degree burglary (§ 667, subd. (e)(2)(A)(ii)). The People correctly note that in addition to 15 years for three prior serious felony convictions (§ 667, subd. (a)(1)), there is a one-year prior prison term enhancement in case No. C1492689, meaning that the total determinate portion of defendant's sentence in that case will be 16 years.
B. ROMERO MOTION
Defendant argues the trial court abused its discretion because it did not comprehend the extent of its discretion; considered an excessive number of defendant's prior serious felony convictions; relied on a speculative assumption about one of defendant's prior convictions; and failed to "take into account the changed nature of the Three Strikes scheme" caused by the Three Strikes Reform Act of 2012.
1. Legal Standards
While a trial court is permitted to strike one or more prior felony conviction allegations under section 1385 to allow the court to sentence a defendant to a determinate term instead of an indeterminate third strike term, a "court's discretion to strike prior felony conviction allegations in furtherance of justice is limited." (Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising its discretion, a trial 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 law's] spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) We review the trial court's decision for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
2. The Williams Factors Support the Trial Court's Decision
The first Williams factor addressed the nature and circumstances of defendant's current crimes. (Williams, supra, 17 Cal.4th at p. 161.) Defendant's present convictions include four felonies committed in less than a month, three of which are first degree burglaries. There is a "perceived danger of violence and personal injury that is involved when a residence is invaded" (People v. Cruz (1996) 13 Cal.4th 764, 775-776), which likely explains why first degree burglary is a serious felony (§ 1192.7, subd. (c)(18)) while second degree burglary is not. Defendant minimizes the danger inherent in his present convictions by noting that he took pains not to endanger occupants by trying to make sure no one was present when he entered the residences. But defendant also told an officer that while he took precautions to ensure that residences were vacant, he did not care if he encountered anyone in the homes he burglarized. And as noted in the probation report, defendant's "casing" of the residences demonstrated planning and sophistication, which is an aggravating sentencing circumstance. (Cal. Rules of Court, rule 4.421(a)(8).)
The second factor—the nature and circumstances of defendant's previous serious felony convictions—likewise supports the trial court's decision. (Williams, supra, 17 Cal.4th at p. 161.) Defendant had 13 prior felony convictions and 11 prior misdemeanor convictions. Six of those 13 prior felony convictions were serious felonies that qualified strikes: five first degree burglaries (§ 1192.7, subd. (c)(18)) and one attempted first degree burglary (§ 1192.7, subd. (c)(39)). Defendant argues that the trial court's decision was based on a mistake of fact and law in that the court allegedly should have considered four of the prior serious felony convictions as a single prior strike conviction because they were brought and tried in the same action. (Citing § 667, subd. (a)(1).) Though section 667, subdivision (a)(1) limits the number of prior serious felony conviction sentencing enhancements the trial court could impose, defendant points to nothing in section 667, subdivision (a)(1) or case law interpreting it that would prevent all prior convictions from being considered for purposes of Romero. Section 667, subdivision (a)(1) is silent regarding its application in the Romero context, and we see no reason why a trial court should be precluded from considering all prior strike convictions when deciding a Romero motion. The trial court was presented with a defendant who had six prior serious felony convictions, all for the same conduct as his present felony convictions. The similarity between defendant's prior strikes and his present convictions supports the trial court's conclusion that defendant was not outside the spirit of the three strikes law.
The third Williams factor is a consideration of defendant's background, character, and prospects. (Williams, supra, 17 Cal.4th at p. 161.) Defendant argues that his prior serious felony convictions were remote, and notes that he "led a long crime free life" before committing his present felonies. Defendant's prior serious felony convictions occurred more than 20 years before the present felony convictions, and defendant was not convicted of any offenses between being paroled in 1999 and committing two misdemeanors in 2009. But after 2009, defendant was convicted of felony receiving stolen property in 2011, and he was on post release community supervision for that felony when he committed the present felonies in 2014. The foregoing supports the trial court's finding that with the exception of a roughly 10-year period of sobriety, defendant demonstrated he was "not capable of conforming his behavior when confronted by a down cycle in his personal life."
3. The Trial Court Did Not Misapprehend its Discretion
Defendant argues the trial court "found that it had no discretion" to grant the Romero motion, which if true would be an abuse of discretion. (See Carmony, supra, 33 Cal.4th at 378 ["[A]n abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss" prior strikes.].) Defendant's argument is not supported by the record. The trial court noted its "job is to follow the law," and the court found that defendant was not outside the spirit of the three strikes law. Defendant points to the court's statement that "I just don't get to exercise my personal judgment here in the sense that maybe not life in prison for a property crime" as evidence that the court did not think it had discretion to grant the Romero motion. But when considered in the context of the court's other findings, it is clear that the trial court understood its discretion and based its denial on its detailed consideration of the Williams factors.
4. The Three Strikes Reform Act Did Not Change Romero
Defendant notes that because of the Three Strikes Reform Act of 2012, a defendant now generally cannot be sentenced to a life sentence on a third felony conviction unless that third felony is serious or violent. (§ 667, subd. (e)(1)(C).) Asserting that Romero relief used to be more likely in cases involving a non-serious or non-violent third felonies, defendant argues that the change in the law moved the "goal posts" for Romero motions such that a new type of offense and offender "has moved into the category of persons worthy of Romero leniency." But defendant points to nothing in the Three Strikes Reform Act of 2012 that expressly or implicitly changed the standards for Romero motions. Romero motions have always involved consideration of a defendant in context to determine whether he or she is sufficiently outside the spirit of the three strikes law to overcome the "strong presumption that any sentence that conforms to [the] sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) The trial court properly considered defendant's Romero motion by analyzing the Williams factors.
5. The Trial Court Considered Sentencing Alternatives
Defendant argues that the trial court failed to consider sentencing options under which the court could have granted defendant's Romero motion in part and still imposed a substantial prison term. But the trial court mentioned it went "back and read and reread the documents several times" in light of the "awesome responsibility" placed on it by defendant's open plea. And the court stated that defense counsel led the court through the various sentencing choices available. The foregoing demonstrates that the trial court considered its sentencing options.
Defendant cites People v. Garcia (1999) 20 Cal.4th 490 (Garcia), where the Supreme Court confirmed that a trial court may dismiss prior convictions on a count-by-count basis to decrease the overall indeterminate three strikes sentence imposed without dismissing all prior strikes entirely. (Garcia, at pp. 499-500.) But Garcia's procedural posture on appeal is the opposite of the instant case. The Supreme Court in Garcia found no abuse of discretion in the trial court's decision to grant a Romero motion (Garcia, at p. 503), whereas here we must determine whether the trial court's decision to deny defendant's motion fell outside the bounds of reason. Defendant has not demonstrated an abuse of discretion.
6. District Attorney Benefit Discussion
Defendant argues that the trial court abused its discretion by relying on a "speculative scenario under which appellant had already received an 'extensive benefit' from the D.A.'s office, despite the fact that the prosecutor told the court it could not make such a representation." Defendant's argument refers to the colloquy regarding defendant's 2011 felony conviction for receiving stolen property, which appears to have been originally charged as a first degree burglary. The trial court suggested, based on a statement by defense counsel, that the reduction in charges in the 2011 case was done for defendant's benefit in order to prevent him from being sentenced as a third strike offender (receiving property is not a serious or violent felony). The prosecutor could not immediately verify the trial court's theory, but called it reasonable.
Defendant argues "the record did not establish such a decision" by the district attorney's office, and suggests the district attorney's office "could have had reasons besides prosecutorial 'generosity' for reducing" the charges such as a failure of proof. But it is defendant's burden to show that the trial court's decision was an abuse of discretion, and defendant points to nothing in the record demonstrating that the trial court's assumption was incorrect. (See Carmony, supra, 33 Cal.4th at pp. 376-377 [" ' "[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary ... [and in] the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives." ' "].) And as we have already discussed, the trial court stated several adequate reasons for its decision. On this record, defendant has not demonstrated an abuse of discretion.
C. CRUEL AND UNUSUAL PUNISHMENT
Defendant argues that his sentence violated the federal and California Constitutions because it amounts to cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
1. Forfeiture and Ineffective Assistance of Counsel Standard
Defendant acknowledges that he did not object on constitutional grounds in the trial court, but argues that the issue is not forfeited because the fact-based inquiry involved in the Romero motion adequately fleshed out the issues raised in his constitutional claim. Defendant cites People v. Yeoman (2003) 31 Cal.4th 93, 117 (Yeoman), where the Supreme Court observed that appellate courts should consider an argument not raised below if it "merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved." The Supreme Court made that observation in a case where the defendant had preserved a state constitutional claim under People v. Wheeler (1978) 22 Cal.3d 258 but had arguably forfeited a parallel federal claim under Batson v. Kentucky (1986) 476 U.S. 79. (Yeoman, at pp. 117-118.) Unlike the functionally identical issues in Yeoman, a Romero claim is not identical to a claim that a sentence is unconstitutionally cruel and unusual. The trial court here focused on factors relevant to Romero motions, whereas defendant's constitutional challenges require consideration of factors specific to those issues. Defendant forfeited his constitutional arguments.
Defendant alternatively contends that his trial counsel provided ineffective assistance. To establish ineffectiveness of trial counsel in violation of a defendant's right to counsel under the Sixth Amendment to the United States Constitution, a defendant must show both that counsel's performance was deficient and that he was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) Deficient performance is rarely shown if there was a tactical reason for trial counsel's conduct. (See People v. Cruz (1980) 26 Cal.3d 233, 255-256.) To prove prejudice, a defendant must affirmatively show a reasonable probability that, but for his trial counsel's errors, the result would have been different. (Ledesma, at pp. 217-218.)
2. Federal Constitutional Challenge
Defendant argues his trial counsel provided ineffective assistance by not arguing that the sentence imposed by the trial court violated the Eighth Amendment, which prohibits "cruel and unusual punishments." (U.S. Const., 8th Amend.) When reviewing a non-capital sentence to determine whether it is cruel and unusual, we ask whether the sentence is "grossly disproportionate" to the crime. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.) Federal courts look to the following criteria to assist with this determination: "(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.) A sentence will only be found grossly disproportionate in " 'exceedingly rare' and 'extreme' case[s]." (Lockyer, supra, 538 U.S. at p. 73.)
The United States Supreme Court addressed and rejected an Eighth Amendment claim related to an individual sentenced to an indeterminate term of 25 years to life under the pre-2012 version of California's three strikes law in Ewing v. California (2003) 538 U.S. 11 (Ewing). The jury convicted Ewing of felony grand theft for stealing three golf clubs with a total value of about $1,200. (Id. at pp. 17-18 (plur. opn. of O'Connor, J.).) Because of previous serious or violent felony convictions, the trial court sentenced Ewing to 25 years to life in prison. (Id. at p. 20.) In affirming Ewing's sentence, Justice O'Connor's plurality opinion discussed recidivist statutes generally and California's three strikes law specifically, noting that " '[s]tates have a valid interest in deterring and segregating habitual criminals.' " (Id. at p. 25, quoting Parke v. Raley (1992) 506 U.S. 20, 27.)
Focusing on the first criterion—the gravity of the offense and the harshness of the penalty—the Ewing court noted that while the theft of three golf clubs might seem trifling, their value was not insignificant. (Ewing, supra, 538 U.S. at p. 28 (plur. opn. of O'Connor, J.).) The Court observed that harshness cannot be determined in the vacuum of the most recent offense, but rather must be viewed in the context of a "long history of felony recidivism." (Id. at p. 29.) When viewed in that light, the plurality found no gross disproportionality. The Court found the sentence justified both by Ewing's recidivism and California's public safety interest in incapacitating and deterring recidivists. (Id. at pp. 29-30.) While California's three strikes law resulted in lengthy prison sentences, it reflected "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." (Id. at p. 30.) Because the plurality found no inference of disproportionality, it affirmed Ewing's sentence without addressing the other two criteria.
Turning to the seriousness of defendant's offenses here, he pleaded no contest to three counts of first degree burglary, all statutorily serious felonies qualifying as strikes. He also admitted he had suffered six prior strike convictions (five first degree burglary convictions and one attempted first degree burglary conviction). Defendant argues that he tried to ensure all the residences were unoccupied before he burglarized them. But the Legislature has deemed first degree burglary a serious felony regardless of whether occupants are home at the time of the burglary. (§ 1192.7, subd. (c)(18).) Regarding the harshness of defendant's sentence, we note that a major contributor to its length is defendant's conduct in committing three separate residential burglaries in the instant cases, which requires him to serve three consecutive indeterminate sentences. (§ 667, subds. (c)(6), (c)(7), (e)(2)(B).) And the sentence is also based on defendant's numerous previous convictions for the same crime. Based on a consistent history of felony recidivism, the trial court imposed a life sentence because incapacitation appeared to be the only effective method of preventing defendant from re-offending. As the plurality recognized in Ewing, the sentence in this case furthers California's legitimate interest in deterring and segregating habitual criminals. (Ewing, supra, 538 U.S. at pp. 25, 30.) On these facts, we find no gross disproportionality between defendant's conviction and his sentence.
Because we find no inference of disproportionality, we follow the practice of the plurality in Ewing and do not address the other two criteria. Given the lack of gross disproportionality, defendant's counsel may have had a tactical reason for not objecting (i.e., futility). (People v. Price (1991) 1 Cal.4th 324, 387 (Price) ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile."].) Defendant has not demonstrated ineffective assistance of counsel regarding his Eighth Amendment argument.
3. California Constitutional Challenge
Defendant argues his trial counsel provided ineffective assistance by not challenging his sentence under the California Constitution. Article I, section 17 of the California Constitution prohibits "cruel or unusual punishment." (Cal. Const., art. I, § 17.) California courts also use a three-factor test to determine whether punishment "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).) To determine defendant's claim, we analyze: (1) the nature of the offense and the offender; (2) defendant's sentence compared with the punishment for different offenses in California; and (3) defendant's sentence compared with the punishment for similar offenses in other jurisdictions. (Id. at pp. 425-428; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510 (Martinez).)
Defendant pleaded no contest to three counts of first degree burglary, all serious felonies, and admitted six prior strike convictions. (We acknowledge that while the prosecution alleged, and defendant admitted, six prior strike convictions in case Nos. C1492689 and C1504492, the prosecution elected to allege only five prior strike convictions in case No. F1452071.) Though defendant argues he took pains to ensure no residents were present when he committed his crimes, he also admitted that he did not care if he encountered a resident during the burglaries. And defendant's surveillance demonstrates the aggravating circumstance of planning and sophistication. (Cal. Rules of Court, rule 4.421(a)(8).)
Defendant argues that the trial court believed his argument that "all his offenses were driven by addiction," and contends his addiction was a mitigating factor because it shows he was "suffering from a mental or physical condition that significantly reduced culpability for the crime." (Cal. Rules of Court, rule 4.423(b)(2).) The trial court stated generally that it "believe[d] every word" that defendant had provided, and the court more specifically observed that defendant appeared to be someone who "has addressed and continues to address his addiction." We do not interpret the foregoing as the trial court agreeing that defendant was less culpable as a result of his addiction, and defendant points to no case where a court has found a defendant's drug addiction to qualify as a mitigating factor. As defendant acknowledges, in Martinez a different panel of this court reasoned that "drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment," even where the defendant became "seriously committed to seeking treatment after incarceration on charges carrying a life term." (Martinez, supra, 71 Cal.App.4th at p. 1511.) Defendant here showed greater commitment to sobriety than the defendant in Martinez, but we agree with the trial court's finding that defendant's recidivism shows "he is not capable of conforming his behavior when confronted by a down cycle in his personal life."
Defendant attempts to factually distinguish Martinez, arguing that Martinez's prior convictions showed he was prone to violence. Defendant argues he never committed a violent felony. But the Martinez court found no constitutional infirmity in Martinez's sentence even though his third strike felony (possessing methamphetamine) was neither serious nor violent. (Martinez, supra, 71 Cal.App.4th at p. 1516.) In contrast here, all of defendant's strike convictions were serious felonies.
As to the second factor—comparing defendant's sentence with the punishments for other offenses—defendant compares in isolation the sentence for his most recent offenses to individual "more serious" crimes like rape or voluntary manslaughter, which he notes carry determinate sentences. (Citing §§ 261, 264, subd. (a) [rape; up to eight years]; 193, subd. (a) [voluntary manslaughter; up to 11 years].) But as defendant acknowledges, the proper comparison must include "not only his current offenses, but also his recidivism." (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136; see also People v. Sullivan (2007) 151 Cal.App.4th 524, 571.) For example, in Martinez the defendant had prior strike convictions for assault with a deadly weapon and robbery. (Martinez, supra, 71 Cal.App.4th at p. 1511.) Martinez compared his third strike life sentence for methamphetamine possession and interference with an executive officer to that of a first-time offender convicted of voluntary manslaughter, urging that the latter would receive a shorter sentence. The Martinez court noted that the proper comparison is to a "recidivist killer" whose punishment would be the same as the defendant's under California's three strikes law. (Id. at p. 1512.) Similarly here, the proper comparison is to an offender with two strikes who, like defendant, commits additional serious or violent felonies. Because those additional serious or violent felony convictions would trigger the same sentence defendant received for his current burglary convictions, this factor demonstrates intrastate proportionality.
Defendant focuses particularly on the third Lynch factor, namely that his sentence in California is greater than what he would receive in other states. Defendant argues that no other state would sentence "a non-violent repeat burglar with a de facto sentence of life without parole." He notes that some states allow life sentences only when a defendant commits a violent felony. (E.g., Miss. Code Ann. § 99-19-83 [at least one violent felony]; Ga. Code Ann. § 17-10-7(b)(2) [life without parole for second serious violent felony].) He points out that in other states, the time gap between defendant's current and prior convictions would have exempted him from being sentenced as a recidivist. (E.g., Mont. Code Ann. § 46-18-502(2)(b) [applying to felonies committed within five years after prior felony conviction].) And defendant argues that even in states that would impose a substantial sentence on an offender like defendant, the sentences would not be indeterminate. (E.g., N.H. Rev. Stat. Ann. § 651:6(II)(a), (III)(a) [10- to 30-year sentence for third felony conviction].)
This court considered and rejected arguments similar to defendant's in Martinez after an exhaustive review of the sentencing regimes in other states. (Martinez, supra, 71 Cal.App.4th at pp. 1512-1516.) While the Martinez court recognized that the version of California's three strikes scheme in place before the Three Strikes Reform Act was one of the strictest in the nation, it noted the Legislature need not conform to the laws of other states and has broad authority to set sentences. (Martinez, at p. 1516; see also Ewing, supra, 538 U.S. at p. 22 (plur. opn. of O'Connor, J.) [" 'courts should be reluctant to review legislatively mandated terms of imprisonment, and ... successful challenges to the proportionality of particular sentences should be exceedingly rare.' "].) We find the reasoning of Martinez persuasive and conclude this third factor does not compel a finding in defendant's favor. Because we do not find defendant's sentence excessive, the mere fact that his sentence may be harsher under California law than elsewhere is unavailing.
Given that defendant's sentence does not violate article I, section 17 of the California Constitution, his trial counsel need not have made a futile objection. (Price, supra, 1 Cal.4th at p. 387.) Defendant has not demonstrated ineffective assistance of counsel related to his California Constitutional argument.
III. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing as discussed in part II.A. of this opinion.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Elia, J.