Opinion
H024748.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN RIOS, Defendant and Appellant.
A jury found defendant Richard Allen Rios guilty of possession of a controlled substance. Thereafter, the trial court found true allegations that defendant had three prior convictions for purposes of the three strikes law and one prior conviction for purposes of a one-year sentence enhancement. It then sentenced defendant to 26 years to life pursuant to the three strikes law. On appeal, defendant contends that the sentence constitutes cruel and unusual punishment under the federal and state Constitutions. (U.S. Const., Eighth Amend.; Cal. Const., art. I, § 17.) We disagree and affirm the judgment.
BACKGROUND
Defendant violated parole. Police officers arrested defendant and found seven Baggies of methamphetamine on his person.
Defendants record consists of 10 felony and 30 misdemeanor convictions. His strike priors are convictions for (1) assault with intent to commit rape, (2) robbery, and (3) assault with intent to commit rape. Defendant has violated parole six times since 1997.
DISCUSSION
Although the relevant analysis for defendants constitutional argument, particularly under the state Constitution, usually requires a rather lengthy, threefold examination (see In re Lynch (1972) 8 Cal.3d 410, 425-429, 105 Cal. Rptr. 217, 503 P.2d 921), we believe there must be a point when the standard version of the argument, such as that made here by defendant, may be summarily rejected. (See, e.g., People v. Cortez (1999) 73 Cal.App.4th 276, 286.)
To the extent that defendant relies on the nature of his offense and the disproportionate punishment under the recidivist statutes of other jurisdictions, we summarily reject defendants argument for the reasons stated fully in People v. Cooper (1996) 43 Cal.App.4th 815, 825-828. To the extent that defendant relies on the nature-of-the-offender factor, we conclude that the assertion that his sentence is cruel and unusual rings hollow when considered against his lengthy, serious record. Defendant cites no case holding that such a sentence, given such a record, is unconstitutional.
We also note that the United States Supreme Court in Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, __U.S.__, 123 S. Ct. 1166 and Ewing v. California (2003) 155 L. Ed. 2d 108, __U.S.__, 123 S. Ct. 1179 (Ewing) recently reexamined its opinions on the question of the proportionality of a term of years sentence under the federal Constitution, including Rummel v. Estelle (1980) 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, Solem v. Helm (1983) 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001, and Harmelin v. Michigan (1991) 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680, and reiterated Californias power to make "a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime" and concluded "nothing in the Eighth Amendment prohibits California from making that choice." (Ewing, supra, 123 S. Ct. at p. 1187.) As the court noted, "in weighing the gravity of [a defendants] offense, we must also place on the scales not only his current felony, but also his long history of felony recidivism." (Id. at pp. 1189-1190.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Elia, J., and Bamattre-Manoukian, J. --------------- Notes: An opinion of the Court of Appeal that does not warrant publication furthers only the " review for correctness " function of the court, and, as such, does not merit extensive factual or legal statement. (People v. Garcia (2002) 97 Cal.App.4th 847, 851.) "Memorandum opinions may vary in style, from a stereotyped checklist or fill in the blanks form to a tailored summary of the critical facts and applicable law. [Citations.] The briefest formats are appropriate in cases where the result is controlled by an admittedly constitutional statute and which present no special question of interpretation or application, cases where the result is controlled by an opinion of the Supreme Court of the United States or the Supreme Court of California, or, in the absence of either, where the result is consistent with an intermediate federal or state appellate decision with which the court agrees, cases where the factual contentions are subject to the routine application of the substantial evidence rule, cases decided by applying the authority of a companion case, cases in which the result is mandated by the United States Supreme Court, and cases where the appeal is not maintainable." (Id. at p. 853.) This case is appropriate for a brief format.