Opinion
B224689
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE ROBINSON, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA353796)
APPEAL from a judgment of the Superior Court of Los Angeles County, George G. Lomeli, Judge. Affirmed.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Lawrence Robinson, convicted of possession of ammunition and sentenced to serve six years as a second-strike offender (see Pen. Code, §§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d), the "Three Strikes" law), contends the trial court abused its discretion in refusing to strike his prior strike in furtherance of justice and sentence him as an ordinary offender. Appellant further contends his sentence violates federal and state constitutional principles forbidding disproportionate punishment. Appellant also seeks review of the court's Pitchess determination. Discerning no abuse of discretion in the court's sentencing decisions or its Pitchess review, we affirm.
Undesignated statutory references are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged with the attempted murder of Javier Cisneros (§§ 664/187, subd. (a)), shooting from an automobile (§ 12034, subd. (c)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and possession of ammunition by a felon (§ 12316, subd. (b)(1)). The information further alleged that appellant had suffered a prior serious or violent felony conviction -- a 1984 robbery (§ 211) -- within the meaning of the Three Strikes law.
The possession of ammunition charge alleged that appellant was prohibited from owning ammunition due to the 1984 robbery conviction. The possession of a firearm by a felon charge alleged that appellant had been convicted of theft or unlawful taking or driving of a vehicle (Veh. Code, § 10851) in 1977 and a non-strike burglary (§ 459) in 1981.
B. Prosecution Case
Appellant lived near the home of Cisneros's aunt. Cisneros testified that on the afternoon of March 7, 2009, he was working in his aunt's front yard when he heard appellant making offensive remarks about Mexicans. Cisneros asked appellant what his "problem" was and suggested they "settle" or "take care of" it. Appellant walked toward his driveway. Moments later, Cisneros saw appellant in his car driving slowly past Cisneros's location. Appellant pointed a gun out the window at Cisneros and fired five shots. Immediately afterward, appellant's car hit a parked vehicle. Appellant got out of the car, pointed his gun at Cisneros, and ran away. Cisneros went into his aunt's house. A few minutes later, he came out and threw a 40-ounce beer bottle through the back window of appellant's car.
Cisneros's niece, Stephanie Cervantes, testified she was inside the aunt's house when she heard two men arguing. She went outside and saw a man getting into a car. When the man drove past Cisneros, Cervantes heard shots. The car crashed and the man got out.
Cervantes was unable to identify appellant in court, but testified she told police at the time, the man looked like a person she believed was the aunt's neighbor. In addition, she identified appellant in a field identification.
Cervantes did not see a gun.
Another witness, Reyna Dominguez, heard shots and a crash and saw an African-American man get out of a car, holding a gun. Jessie Sanchez heard gunshots and saw an African-American man run past his home. Francisca Angelino heard shots and observed an African-American man jump into and out of her back yard.
None of these witnesses could identify appellant in court.
After his arrest, police officers searched appellant's house and found an empty box of .357 ammunition on a bed in one of the bedrooms and a gun belt in the laundry room. They did not find a gun. When they arrested appellant, officers found three live .357 rounds in the front pocket of his pants.
C. Defense Case
Appellant testified. He admitted that he and Cisneros had had a verbal altercation, but stated that Cisneros had initiated it by calling him a Spanish word that means "black bug" and telling him to get out of the neighborhood. Cisneros challenged appellant to a fight, but appellant did not take him seriously. A short time later, appellant got into his car to drive to the store. As he passed Cisneros, he heard gunshots. He ducked down. The back window of his car shattered and he crashed into another vehicle. He got out and ran into his back yard. He later jumped the fence to avoid the neighbor whose car he hit. He admitted owning a box containing three .357 bullets, but claimed that at the time of his arrest, it was in his bedroom where it had been for many years. He further admitted he had been convicted of a burglary in 1981, a robbery in 1984 and possession of a gun in 1997.
The court disallowed questioning about the alleged Vehicle Code section 10851 violation.
Freida Robinson testified that on March 7, 2009, she was driving her car on the street where appellant and Cisneros's aunt lived. She saw a group of men hanging out and saw appellant's car pull out of his driveway onto the street. She heard a noise and saw glass shatter in appellant's car. He got out of his car with a hat in his hand and ran off.
Freida Robinson is not related to appellant.
Wanda Jones, appellant's niece, testified that in 2008, she was with appellant, walking near his home. Cisneros and three or four of his friends blocked their path and called appellant a "nigger." When they were returning, Cisneros and his friends stepped between appellant and Jones and said to Jones: "Take your Black ass home." A few days later, Cisneros made rude comments to Jones when she was walking to the store alone. In January 2009, when appellant and Jones were on appellant's porch, Cisneros rode by on his bicycle and again made crude racial remarks.
D. The Verdict
The jury found appellant guilty of possession of ammunition. It found him not guilty of attempted murder or shooting from an automobile. It was unable to reach a verdict on the charge of possession of a firearm or the lesser included offense of assault. The prosecution subsequently dismissed the unresolved counts. Appellant stipulated to a March 1997 felony conviction for possession of a weapon by a felon (§ 12021).
E. Sentencing
At the sentencing hearing, appellant's counsel argued that due to the age of the strike (the 1984 robbery) and the fact that appellant had been working and raising a child for many years, the court should strike the strike. Appellant was given an opportunity to speak and began by declaring his innocence of the shooting and weapon charges. The court stated: "The court is not even considering [the charges on which the jury hung]. . . . All I have before me is the possession of the ammunition. . . . That's all this court is focused on. [¶] . . . [¶] I'm not even considering anything else, nor can I." The court further stated that it was primarily disturbed by appellant's priors: "The robbery is a serious charge, even though it happened in '84; you have a 1996 [sic] firearm incident, and that's not . . . too far off; on top of that, you have a [section] 459 [burglary], again back in the 80's; a [Vehicle Code section] 10851 [theft or taking of vehicle], which is in 1977." The court stated that appellant's record made the current offense "egregious." The court sentenced appellant to three years for the unlawful possession of ammunition, doubled to six years due to the prior strike.
DISCUSSION
A. Striking a Strike
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the Supreme Court held that "'a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to . . . section 1385(a).'" (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony),quoting People v. Williams (1998) 17 Cal.4th 148, 158.) "A defendant has no right to make a motion [under section 1385], . . . [b]ut he or she does have the right to 'invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.'" (Carmony, supra, at p. 375, quoting Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441.) A decision made in "'"'furtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society . . . [Citations.]"'" (Romero, supra, at p. 530, quoting People v. Orin (1975) 13 Cal.3d 937, 945, italics omitted.) "'[W]hen the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice.'" (Carmony, supra, at p. 375, italics omitted, quoting People v. Superior Court (Howard)(1968) 69 Cal.2d 491, 505.) A court's decision to strike or refuse to strike a strike is reviewable for abuse of discretion. (Carmony, supra, at p. 373; Romero, supra, at p. 531.) Appellant's sentence of three years for the section 12316, subdivision (b)(1) violation was doubled under the Three Strikes law due to his 1984 robbery conviction. Appellant contends the court abused its discretion by refusing to strike his single felony strike. We disagree.
In reviewing for abuse of discretion, we must be guided by "two fundamental precepts." (Carmony, supra, 33 Cal.4th at p. 376.) "First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."'" (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) "Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"'" (Carmony, supra, at p. 377, quoting Alvarez, supra, at p. 978.) "Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, at p. 377.) "'[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.'" (Id. at p. 378, quoting People v. Myers (1999) 69 Cal.App.4th 305, 310.)
The court's exercise of discretion and our review must be informed by the policies that underlie the Three Strikes Law. The law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528, italics added.) "To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" (Carmony, supra, 33 Cal.4th at p. 377, quoting People v. Strong (2001) 87 Cal.App.4th 328, 337-338.) In other words, "the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, at p. 378.) "[T]he circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack.'" (Ibid., quoting People v. Strong, supra, 87 Cal.App.4th at p. 338.) The circumstances under which the reviewing court could conclude that "no reasonable people could disagree that the [defendant] falls outside the spirit of the three strikes scheme" must perforce be "even more extraordinary." (Carmony, supra, at p. 378.) Essentially, the court must be convinced that "'in light of the nature and circumstances of his present felon[y] and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme'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.'" (Id. at p. 377, quoting People v. Williams, supra, 17 Cal.4th at p. 161.)
Abuse of discretion may also be found where the record establishes that the court was not aware of its discretion or considered impermissible factors. (Carmony, supra, 33 Cal.4th at p. 378.) The court was clearly aware of its discretion and expressly stated that it could not -- and did not -- take into account charges on which there had been no finding of guilt.
The record does not reflect the extraordinary circumstances required to overturn the trial court's decision to refuse appellant's invitation to strike his prior robbery strike. Appellant points out that the strike offense was 26 years old. He cites no authority for the proposition that the age of a strike alone requires the court to depart from the three-strike sentencing scheme, and we are aware of none. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [noting that "a prior conviction may be stricken if it is remote in time," but that "[i]n determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on"].) Appellant has not led a blameless life since his conviction of the robbery in 1984. He was convicted and sentenced to prison for felony possession of a weapon in 1997. Moreover, the 1984 robbery and the 1997 weapon possession were not appellant's only two criminal offenses; he also had suffered two other felony convictions prior to the 1984 robbery. Appellant seeks to minimize his current offense, describing it as "nonviolent," "passive," and "harmless." Possession of ammunition by a felon is a serious problem that can lead to violence. The fact that appellant owned ammunition suggests he had access to or intended to acquire a weapon. The court balanced all of these factors -- appellant's current offense and the circumstances surrounding it, his prior strike, and his other offenses -- and concluded appellant was not outside the spirit of the three-strike scheme. The court's determination was not so irrational or arbitrary that no reasonable person could agree with it.
B. Disproportionate Sentence
"Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity." (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted; see Ewing v. California (2003) 538 U.S. 11, 20-21.) Appellant contends his sentence was excessive and disproportionate under both state and federal constitutional principles. This claim is forfeited because he failed to raise it below. (People v. Russell (2010) 187 Cal.App.4th 981, 993.) We nevertheless address the merits.
"'Defining crime and determining punishment are matters uniquely legislative in nature, resting within the Legislature's sole discretion.'" (People v. Lewis (1993) 21 Cal.App.4th 243, 251, quoting People v. Macias (1982) 137 Cal.App.3d 465, 475.) "'The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty "out of all proportion to the offense" [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.' [Citation.]" (People v. Lewis, supra, at p. 251, quoting In re Lynch (1972) 8 Cal.3d 410, 423-424.) When analyzing a claim of disproportionality, we examine the nature of the offense and of the offender, and compare the sentence to that imposed for similar offenses in California and other jurisdictions. (See In re Lynch, supra, at pp. 425-429.) Appellant is a felon with multiple serious offenses on his record, including one strike for robbery. He fails to demonstrate that a sentence of six years is excessive for the crime of possession of ammunition by a felon who has committed a prior strike. In view of his current crime, recidivism, and lack of rehabilitation, the sentence cannot be deemed excessive or unconstitutional.
C. Pitchess Review
1. Background
Prior to trial, the defense moved under Pitchess v. Superior Court, supra, 11 Cal.3d 531, for discovery of the personnel records of Officers Stannard, Shannon, Wright and Oseguera. The moving papers contended that Officers Stannard and Shannon had searched appellant after his arrest and claimed to have found ammunition in his pocket; that Officer Osequera had searched appellant's house and claimed to have found a gun belt and an empty ammunition box; and that Officer Wright had co-authored the police report, including witness statements, that allegedly contained false information. Appellant denied having ammunition in his pocket at the time of his arrest, denied owning a gun belt, and denied that there was an ammunition box lying on his bed. He further denied the allegations of the witnesses set forth in the police report. The motion sought discovery of evidence relating to dishonesty, including allegations of false arrest, fabrication of evidence or probable cause, filing or writing false police reports, perjury, or planting evidence, and acts constituting a violation of the statutory or constitutional rights of others.
The court granted the motion and conducted an in camera review of the officers' personnel records. It ordered that information related to one incident involving Officer Osequera be turned over to defense investigators. Appellant asks that we review the transcript of the Pitchess review to determine whether the trial court abused its discretion by failing to order disclosure of any other pertinent information. We have reviewed the sealed transcript of the in camera hearing. It constitutes an adequate record of the trial court's review of the documents provided to it, and reveals no abuse of discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1231.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: WILLHITE, Acting P. J. SUZUKAWA, J.