Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC625858
Bamattre-Manoukian, Acting P.J.
Defendant John Rodewald was convicted by guilty plea of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor being under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a)). He also admitted having two prior strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and having served two prior prison terms (§ 667.5, subd. (b)). After the trial court denied defendant’s Romero motion, it sentenced defendant to state prison for the indeterminate term of 25 years to life.
Further unspecified statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant contends that the trial court denied him due process when it based its Romero motion decision on unreliable hearsay. Defendant further contends that his sentence constitutes cruel and unusual punishment. We disagree with defendant’s contentions and, therefore, will affirm the judgment.
BACKGROUND
The following summary of defendant’s current offenses is taken from the probation report.
Around 2:20 a.m. on April 6, 2006, San Jose police officers observed a vehicle traveling over 35 miles per hour in a 25-mile-per-hour residential zone. After the officers conducted a traffic stop, the driver informed the officers that she did not have a driver’s license and that defendant, the passenger, was the registered owner of the vehicle. A records check revealed that the driver had an outstanding arrest warrant. Incident to the driver’s arrest, the officers seized a small plastic bindle containing an off-white substance from between the vehicle’s driver’s seat and its center console. The substance in the bindle tested presumptively positive for cocaine. The officers observed defendant to be under the influence of cocaine and they seized a small bindle of cocaine from his shirt pocket.
Defendant was charged by information with possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 1) and misdemeanor being under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a); count 2). The information also alleged that defendant had two prior strikes (§§ 667, subd. (b)-(i), 1170.12), and that he had served two prior prison terms (§ 667.5, subd. (b)). On January 16, 2007, defendant pleaded guilty to the charges and admitted the prior allegations.
Defendant filed a request that the court strike his strikes pursuant to section 1385 and Romero. In the request, defendant stated the following. He was born in 1958, and he started drinking alcohol at age 12 and using cocaine at age 15. He was sent to a 30-day drug treatment program in Alaska in 1983 and he completed a treatment program in San Jose in 2003. His first strike prior was a 1985 Washington state conviction by plea to robbery in the first degree, for which he was sentenced to 41 months in state prison. His second strike prior was a 1994 conviction by plea to first degree burglary, which offense occurred while he was under the influence of cocaine and for which he was sentenced to 14 years in state prison. Aside from his strike priors, he has one other felony conviction, a 1991 Santa Clara County conviction for false imprisonment for which he was sentenced to four years in state prison. He also has five misdemeanor convictions: an Alaska conviction in 1989 for reckless injury; and California convictions in 2002 for making annoying telephone calls (§ 653m), for which he was sentenced to 10 days in county jail; in 2003 for assault (§§ 240, 241, subd. (a)), for which he was sentenced to 71 days in county jail; and in 2005 and 2006 for possession of drug paraphernalia (Health & Saf. Code, § 11364). He left his last job in 2005 “because his cocaine habit got in the way.”
The prosecutor filed opposition to defendant’s Romero motion. The prosecutor listed defendant’s criminal convictions as follows: a 1985 conviction for first degree robbery resulting in a sentence of 41 months; a 1989 conviction for fourth degree assault resulting in a sentence of eight months; a 1990 conviction for false imprisonment resulting in a sentence of four years; a 1993 conviction for burglary with intent to rape resulting in a sentence of 14 years; a 2002 conviction for annoying phone calls resulting in a sentence of 10 days; a 2003 conviction for assault resulting in a sentence of 71 days; and two 2005 convictions for possession of drug paraphernalia. The prosecutor also stated that defendant was charged in 1984 with rape, but was not prosecuted after the death of the victim; that defendant was charged in 1984 with battery on a peace officer, for which 20 hours of community service were deferred; and that defendant was not charged with a second rape in 1985 in light of his plea in the 1985 robbery case. Defendant was paroled on the 1993 conviction in 2000, but parole was revoked in 2001 and again 2002, and he was sent back to prison for five months each time. After defendant was discharged from parole in 2004, he received a deferred entry of judgment on a charge of possession of drug paraphernalia and then was convicted twice for the same offense.
Attached to the prosecutor’s opposition were police reports and other documentation and reports regarding defendant’s 1984 assault conviction and uncharged rape; his 1985 robbery conviction; his 1985 uncharged rape; his 1989 assault conviction; his 1990 false imprisonment conviction; his 1993 burglary conviction and uncharged sexual assault; and his 2002 annoying telephone calls conviction.
The probation report recommended that defendant’s two prison priors be stricken and that defendant be sentenced to state prison for 25 years to life. The report stated that the victim of defendant’s 1984 rape charges was a stroke victim who died one week after the rape. Defendant was a suspect because his car was observed outside the victim’s home five days after the rape. The victim of defendant’s 1985 strike prior was a 65-year-old grandmother who was found strangled to death. Defendant’s car was observed at the scene, and defendant’s fingerprints were found inside the victim’s residence. Defendant entered into an agreement whereby he pleaded guilty to robbery and received a 41-month prison sentence in exchange for testifying against his codefendant on the original rape and murder charges. Defendant admitted having sex with the victim of the second 1985 rape charge but claimed that it was consensual. Defendant also admitted having sex with the victim of the 1989 fourth degree assault charge, but claimed that it, too, was consensual. The victim of defendant’s 1990 false imprisonment conviction was assaulted while she was walking down the street. Defendant pulled her to the ground and stroked her neck. The victim of defendant’s 1993 strike conviction was an elderly woman. Defendant admitted entering the woman’s home, but denied hurting anyone and also denied his involvement in a sexual assault that occurred at another San Jose home just five hours before this entry. The victim of defendant’s 2002 annoying phone call conviction was an 80-year-old woman who had caller ID. The caller called the victim by name and said “ ‘I’m going to come over and stick my cock into you.’ ”
On April 26, 2007, the court informed the parties that it had read and considered the probation report, defendant’s written request, and the prosecutor’s opposition. It also stated that it had discussed the case with both parties prior to entry of defendant’s plea. After hearing argument from the parties the trial court stated in relevant part the following.
“Mr. Rodewald with respect to this case, I have spent a lot of time talking to the attorneys. The attorneys know, and you should know, because of the various calendars I have handled I am approaching 200 Romeros that I have heard, . . . and a large number of these are granted. I am not enamored of sending someone to life in prison, for 25 years to life, based on simple possession of drugs, . . . It is not my function to rewrite the law. The law is what the law is. I have to uphold it. . . . [A]s I told both counsel, before we settled this case I have only sentenced two people to life, under the Three Strikes law where drug possession was the current charge. So, it is not something that I do often. But in this particular case as I have also told counsel your record before me is probably the worse of any of the cases I have seen and that includes the cases where the current offense was serious and violent. . . . And even if I discount the 1984 rape because the victim died and while the doctor said she didn’t appear overly troubled by it, she was a stroke victim and didn’t have full use of her motor functions. So, I am not sure that evaluation of her mental state at this particular point how valuable it is. I saw that battery on the police officer in 1984; and in 1985 conviction of first degree robbery. That is the conviction you had the 41 months, and 1985 rape was not prosecuted because of the opinion that the other murder case, where you pled to first degree burglary, and rape. You have been convicted of 4th degree assault; false imprisonment, 1990 assault. All as [the prosecutor] has said, some of whom were ill and almost as if you sought out women not only old but infirmed and that were unable to defend themselves apart from the age.
“The 1990 assault with false imprisonment four years; and 1993 the burglary where you were convicted of burglary with intent to rape and did 14 years for that one. And so pleasantly for the next nine years there are no more offenses. Then in 2002 – and I told your attorney, just even though it is a minor offense you will go to prison for a long time and have a long time to reflect on the criminal activity – you make a phone call to another elder woman, I think, it was said she was 82, with sexual overtones. And even though you didn’t act on that, it shows that your mindset is such that you could easily go back and do this again.
“You, I guess, are the picture postcard of why the Three Strikes law was enacted. And I said I don’t take any joy in sending someone for life for drug possession, but in this particular case based on all the facts you have earned this.”
The court sentenced defendant to state prison for 25 years to life on count 1, and struck the additional punishment for the two prison priors. It deemed a 90-day concurrent term for count 2 satisfied.
DISCUSSION
Defendant first contends that the sentencing court’s decision to not strike either of his prior strikes, and to sentence him to a life term under the Three Strikes law, was based on the prosecutor’s hearsay information regarding the facts underlying defendant’s prior charges and convictions as stated in the written opposition to defendant’s Romero motion. He argues that this hearsay did not bear any indicia of reliability, and that it is clear that, without the prosecutor’s argument, a different result is reasonably probable. “At the very least, there is reasonable doubt that the sentence was not the result of the erroneously considered information.” Respondent contends that defendant has failed to demonstrate either that the sentencing procedure was so fundamentally unfair as to deprive him of due process or that the court based its decision on evidence that was unreliable.
“Although not all the procedural safeguards required at trial also apply in a sentencing or probation hearing, such a hearing violates due process if it is fundamentally unfair. (People v. Peterson (1973) 9 Cal.3d 717, 726.) ‘Reliability of the information considered by the court is the key issue in determining fundamental fairness’ in this context. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.) A court’s reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process.” (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080; see also People v. Lamb (1999) 76 Cal.App.4th 664, 683.)
“A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person’s life and characteristics.’ (Williams v. Oklahoma (1958) 358 U.S. 576, 584.)” (People v. Arbuckle, supra, 22 Cal.3d at p. 754.) “In the sentencing process the court may consider prior arrests which did not result in conviction, defendant’s criminal history [citation] and raw arrest data [citation], so long as the information is accurate and reliable [citation] and the judge is not misled into believing an arrest to be a conviction. [Citation.]” (People v. Rhines (1982) 131 Cal.App.3d 498, 509; People v. Gragg (1989) 216 Cal.App.3d 32, 43.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (People v. Otto (2001) 26 Cal.4th 200, 212.) “The mere presence of erroneous sentencing information in the record does not require reversal; such information becomes constitutionally significant only if the sentencing court relies upon it.” (People v. Tang (1997) 54 Cal.App.4th 669, 678; see also People v. Ruiz (1975) 14 Cal.3d 163, 168.)
In making its sentencing decision in this case, the court properly relied on defendant’s prior history of criminal convictions and sentences: his 1985 conviction for robbery, for which he was sentenced to 41 months in state prison; his 1989 conviction for fourth degree assault, for which he was sentenced to eight months in jail; his 1990 conviction for false imprisonment, for which he was sentenced to four years in state prison; his 1993 conviction for burglary, for which he was sentenced to 14 years in state prison; and his 2002 conviction for making annoying phone calls, for which he was sentenced to 10 days in jail. The court also properly relied on other offenses for which defendant was arrested or considered a suspect (e.g., the charges in 1984 for assault on a police officer and rape, and in 1985 for rape), and there is no indication that the court believed that these charges led to convictions. At sentencing, defendant had an opportunity to, and did, challenge the reliability of the hearsay information contained in the probation report and the prosecutor’s opposition. That the trial court considered and relied upon some of the hearsay information contained in the police reports underlying defendant’s convictions and other criminal history, even though defendant contested its reliability, does not mean that the court’s decision-making process was “fundamentally unfair.” (People v. Peterson, supra, 9 Cal.3d at p. 726.) No violation of due process has been shown.
Defendant also contends that his sentence of 25 years to life for simple drug possession must be set aside because it constitutes cruel and unusual punishment under the federal Constitution. He argues that the sentence is grossly disproportionate to the offense, even taking into account his recidivism. Respondent contends that defendant’s sentence, which was triggered by his felony possession of cocaine, did not give rise to an inference of disproportionality. Rather, defendant’s sentence is consistent with the Three Strikes law and is reasonable under the circumstances presented.
“The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]” (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing), citing Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 (Harmelin).) “ ‘The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime.’ [Citation.]” (Ewing, supra, at p. 23.)
In Harmelin, the defendant was convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. He claimed that his sentence constituted cruel and unusual punishment in part because it was “ ‘significantly disproportionate’ ” to the crime he committed. (Harmelin, supra, 501 U.S. at p. 961.) The Supreme Court found that “the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine—in terms of violence, crime, and social displacement—is momentous enough to warrant the deterrence and retribution of a life sentence without parole.” (Id. at p. 1003.) The court further held that “intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross proportionality” and that, “[i]n light of the gravity of [the defendant’s] offense, a comparison of his crime with his sentence does not give rise to an inference of gross disproportionality.” (Id. at p. 1005)
In Ewing, the defendant was convicted of grand theft of three golf clubs worth $399 each. The defendant’s criminal history spanned 1984 to 1998 and included misdemeanor and felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of drugs, trespass, and unlawful possession of a firearm. The trial court imposed a life term under the Three Strikes law. (Ewing, supra, 538 U.S. at pp. 17-20.) The Supreme Court explained that in enacting the Three Strikes law, the California Legislature “made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice.” (Id. at p. 25.) In addressing the gravity of the offense compared to the harshness of the penalty, the court emphasized that the gravity of the defendant’s offense included not only his current felony, but also his history of having been convicted of at least two violent or serious felonies. (Id. at pp. 28-29.) “In imposing a three strikes sentence, the State’s interest is not merely punishing the offense of conviction, or the ‘triggering’ offense: ‘[I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’ ” (Id. at p. 29.) The court found that “Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.” (Id. at pp. 29-30, fn. omitted.) Therefore, the court held that “Ewing’s sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments.” (Id. at pp. 30-31.)
As was the defendant’s sentence in Ewing, defendant’s sentence in this case is amply supported by his long, serious criminal history. Defendant has spent much of his adult life serving sentences for three felony and three misdemeanor convictions going back to 1985. Two of defendant’s felony convictions qualify as strikes under the Three Strikes law. Although his most recent strike conviction occurred in 1993, he was sentenced to 14 years in state prison for that offense and he continued to have misdemeanor convictions while on and after he was discharged from parole. The two offenses at issue in this case are his fourth felony and sixth misdemeanor convictions. In addition, at least three other felony charges were contemplated or brought against defendant that did not result in convictions. On this record, we find that defendant’s sentence of 25 years to life under the Three Strikes law, imposed for the felony offense of possession of cocaine, “is not grossly disproportionate and . . . does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments.” (Ewing, supra, 538 U.S. at pp. 30-31.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mcadams, J., duffy, J.