Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07907168. Wayne R. Ellison, Judge.
Curt R. Zimansky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Vartabedian, Acting P.J., Hill, J., and Kane, J.
PROCEEDINGS
Appellant, Tony Anthony Sepeda, was charged in an information with one count of attempted first degree burglary (Pen. Code, §§ 664, 459 & 460, subd. (a)). The information further alleged appellant had two prior serious felony convictions (§ 667, subd. (a)(1)) for robbery in 1991 and burglary in 1987 that were also serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (a)-(i) & 1170.12, subds. (a)-(d)) and four prior prison terms that qualified as enhancements (§ 667.5, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
Before the conclusion of a jury trial, appellant waived his rights and admitted the prior serious felony conviction that he committed robbery in 1991. The jury found the attempted first degree burglary allegation true. In a bifurcated proceeding, the jury found true the second prior serious felony conviction for burglary in 1987. The trial court granted the prosecutor’s motion to dismiss the prior prison term enhancements.
On July 21, 2008, the trial court denied appellant’s motion to strike one or both of his prior serious felony convictions. The court sentenced appellant to prison for 25 years to life plus two consecutive enhancements of five years for the prior serious felony convictions. Appellant’s total prison term is 35 years to life.
Appellant contends the trial court abused its sentencing discretion in failing to dismiss one or both of the prior serious felony convictions. Appellant also contends his sentence constitutes cruel and unusual punishment.
FACTS
On November 27, 2006, V.N. was walking with appellant, who is his uncle, on Ashlan in Clovis. They came upon some bicycles in a front yard, took them, and rode them. When a vehicle left a residence in the neighborhood they were riding through, V.N. and appellant tried to take something from the backyard of that residence. V.N. had no permission from anyone at the residence to go into the backyard. V.N. and appellant spent a few minutes looking for things they could take. V.N. heard people coming, got scared, and decided to jump over a fence. V.N. identified photographs of the bicycles he and appellant had taken.
V.N. was 17 years old at the time of trial.
Philip Castiglione left his home at around 9:00 a.m. on November 27, 2006. His wife left their home about ten minutes earlier. Castiglione’s garage was attached to his home. There is a door on the side of the garage with a window on the upper half of the door. The window on the door slides up and down and has a screen over it. Prior to leaving his home that day, there was no damage to the screen. When Castiglione returned home later that day, the screen was cut. Appellant had no permission to be in Castiglione’s backyard.
Irma Kelly and Robert Kelly (Kelly) are Castiglione’s neighbors. The morning of November 27, 2006, Irma Kelly saw two people riding bicycles slowly down the street. They pushed their bicycles down the sidewalk and then onto the Castiglione’s driveway. They left their bicycles and were walking toward the front door and then the back gate when Irma Kelly called the police.
Kelly was in the back bedroom of his home when he heard the police being called. Within five minutes, Kelly got his pistol and went into his backyard, which has a fence six feet high. Kelly saw appellant and V.N. climb over the fence as the police arrived. Kelly produced his pistol and told the two that if they moved, he was going to shoot them. Appellant jumped over the fence first. V.N. looked at Kelly, who shot a tree next to V.N. V.N. then jumped over the fence. Kelly identified the men 15 or 20 minutes later when the police arrested them.
Officers of the Clovis Police Department were dispatched to the Castiglione neighborhood. Sergeant Edward Mora received a description of appellant and V.N. from other officers. Mora saw two men matching the suspects’ description walking by a cemetery nearby. Although it was cold outside, Mora noticed both men were sweating. Each man gave a different answer as to where they were going.
Officer Gary Taylor noticed that there was damage to the window screen on the garage door. A print taken from the window matched a print taken from appellant’s left middle finger. Appellant testified, denying that he was trying to break into Castiglione’s home. Appellant went into Castiglione’s backyard looking for something to steal so he could purchase drugs.
SECTION 1385 DISCRETION
Appellant contends the trial court abused its discretion in failing to strike one of his prior serious felony convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) Appellant bears the burden of establishing that the trial court’s decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (Ibid.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony I).)
The court noted it was aware that it had the authority to strike prior serious felony conviction allegations. !(RT 533)! The court noted that appellant had many convictions and had been involved in crime since he was 12 or 13 years old. The court noted appellant had involved his minor nephew in the offense. The court accepted appellant’s plea that he was trying to change his life, but found a full sentence of 35 years to life was necessary to protect society. The court exercised its discretion under Romero to deny appellant’s request to strike either prior serious felony conviction allegation and sentenced appellant to a prison term of 35 years to life.
Appellant had the following adjudications as a juvenile: receiving stolen property and battery in 1980; joyriding in 1982; burglary, assault with a deadly weapon, violation of probation, and counterfeiting in 1983; two adjudications for receiving stolen property in 1985.
Appellant challenges the court’s weighing of the relevant factors, arguing the trial court did not adequately exercise its discretion and that his offense was relatively inconsequential. Appellant is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. “Where 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.” (Myers, supra, 69 Cal.App.4th at p. 310, quoted with approval in Carmony I, supra, 33 Cal.4th at p. 378.)
The record in this case affirmatively shows that the court understood its discretionary authority and that it weighed all of the competing facts to reach a reasoned and reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one or more of the strike priors. In view of these facts and circumstances, appellant has failed to show abuse of discretion. (See Carmony I, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
CRUEL AND UNUSUAL PUNISHMENT
Appellant argues that the indeterminate portion of his sentence, 35 years to life, constitutes cruel and unusual punishment under both the federal and the California Constitution. This court has rejected essentially the same argument in People v. Cooper (1996) 43 Cal.App.4th 815, 827 (Cooper) and People v. Ingram (1995) 40 Cal.App.4th 1397, 1412 (Ingram) and disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8. We adopt the holdings of these cases and will not repeat their analysis.
As set forth in detail in the presentence report, appellant has been constantly involved in crime for decades. Appellant’s consistent pattern of misdemeanors, felonies, and parole violations clearly demonstrates neither incarceration nor supervised release has had adequate effect in reforming him. Appellant involved his minor nephew in this offense, imparting his knowledge of criminal arts and technique to the next generation of his family. A sentence of 35 years to life for appellant’s current offense, given his long history of criminal activity, is not cruel and unusual punishment.
Appellant was not sentenced to a life term solely on the basis of the instant offenses, but because of his record as a recidivist offender previously convicted of numerous serious and/or violent felonies. As noted by the trial court, given the lengthy and serious nature of his prior record, appellant is precisely the type of offender from whom society seeks protection by use of recidivist statutes. In evaluating the factors set forth in In re Lynch (1972) 8 Cal.3d 410, appellant’s sentence is not so disproportionate to the crime that it shocks the consciousness, and it does not violate the state constitutional prohibition against cruel or unusual punishment. (See People v. Stone (1999) 75 Cal.App.4th 707, 715; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338; Cooper, supra, 43 Cal.App.4th at pp. 825-828; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.)
In addition, appellant cannot demonstrate that his sentence violates the prohibition against cruel and unusual punishment contained in the federal Constitution. (Lockyer v. Andrade (2003) 538 U.S. 63, 77 [two consecutive terms of 25 years to life for thefts of videotapes not grossly disproportionate]; Ewing v. California (2003) 538 U.S. 11; Harmelin v. Michigan (1991) 501 U.S. 957, 994-995; Rummel v. Estelle (1980) 445 U.S. 263, 284-285; People v. Cooper, supra, 43 Cal.App.4th at pp. 820-825.) In Ewing v. California (2003) 538 U.S. 11, the United States Supreme Court held that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences. The court upheld a 25-year-to-life sentence under the three strikes law for a defendant with prior burglary and robbery convictions who shoplifted three golf clubs. (Ewing, supra, at pp. 20-21, 30-31.)
The defendant in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II), upon which appellant also relies, “was acting in a responsible manner” (id. at p. 1088) up until he committed his current offense. According to the court, a failure to re-register as a sex offender was “a felony in name only.” (Id. at p. 1087.) In Carmony II, the court addressed a situation where the defendant’s current offense was “so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions.” (Id. at p. 1071.)
“Although defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law [citation], he failed to ‘update’ his registration with the same information within five working days of his birthday as also required by law. [Citation.] Defendant’s parole agent was aware defendant’s registration information had not changed and in fact arrested defendant at the address where he was registered.” (Carmony II, supra, 127 Cal.App.4th at p. 1071, fn. omitted.)
Carmony II noted that the probation report showed that prior to the current offense, the defendant was acting in a responsible manner, he had recently married, maintained a residence, participated in Alcoholics Anonymous, was seeking job training and placement, and was employed. (Carmony II, supra, 127 Cal.App.4th at pp. 1087-1088.) While the California Supreme Court had concluded it was an abuse of discretion to dismiss the prior strike convictions (Carmony I, supra, 33 Cal.4th at pp. 376-377), on remand the appellate court held that the third strike term should be reversed because of the constitutional violation. (Carmony II, supra, 127 Cal.App.4th at pp. 1072-1073.) “It is a rare case that violates the prohibition against cruel and/or unusual punishment.” (Id. at p. 1072.)
By contrast, appellant is an incorrigible recidivist. Not only has he committed new crimes soon after each release from prison, he has failed to take advantage of many opportunities on supervised release to reform his conduct. We conclude that appellant “is precisely the type of offender from whom society seeks protection by the use of recidivist statutes. There is no indication [appellant] desires to reform or to change his criminal behavior.” (People v. Ingram, supra, 40 Cal.App.4th at p. 1415.) The sentence imposed in this case violates neither the state nor the federal Constitution.
DISPOSITION
The judgment is affirmed.
Appellant had the following convictions as an adult: possession of a controlled substance in 1986; residential burglary in 1987; violation of parole in 1989; being under the influence of a controlled substance, possession of a switchblade knife, and two violations of parole in 1990; robbery in 1991; violations of parole in 1991, 1996, 1997, 1998, 1999, and 2000; lewd and lascivious acts on a child 14 or 15 years old in 2000; violations of parole in 2003, 2004, and 2005; battery in 2005.