Summary
describing a methamphetamine conviction where the substance was crystal methamphetamine, but not mentioning the crystal methamphetamine enhancement
Summary of this case from Lorenzo v. SessionsOpinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC589123
McAdams, J.
STATEMENT OF THE CASE
Defendant entered pleas of no contest to receiving a stolen vehicle with a prior conviction and transportation of methamphetamine (Pen. Code §§ 496d, 666.5; Health & Saf. Code § 11379, subd. (a).) He admitted allegations that he had suffered two prior strike convictions for residential burglary. (Pen. Code § 460.1.) The third such allegation was found true after a court trial. Following denial of his motion to strike the prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), defendant was sentenced to prison for 25 years to life.
On appeal, defendant contends that the trial court abused its discretion in denying his Romero motion. He also argues that his sentence constitutes cruel and/or unusual punishment. We affirm.
Because defendant pleaded no contest, we draw the facts from the probation report and the preliminary hearing transcript.
At 4:50 a.m. on April 17, 2005, a Campbell police officer noticed a van parked across two parking spaces at the Campbell Inn Hotel, asked dispatch to run its vehicle identification number, and learned that the van had been reported stolen. The officer disabled the van and set up a surveillance. At various times between 6:15 a.m. and 11:10 a.m., two men and a woman were seen to approach the van, open the passenger door and either put something into the van or take something out of the van and head for the hotel.
At 11:20 a.m., the relief officer saw the two men (one of whom was later identified as defendant) approach the van and detained them for questioning. The officer learned that they were staying in room 101. In a search of the room police discovered a baggie containing 28 grams of a white crystalline substance that was later tested and determined to be methamphetamine.
APPELLATE CONTENTIONS
Defendant argues that the trial court’s refusal to strike his prior convictions was an abuse of discretion because substantial evidence was lacking for the trial court’s conclusion that defendant fell within the ambit of the Three Strikes law. He also argues that a sentence of 25 years to life for transportation of methamphetamine is cruel and unusual punishment. The Attorney General argues that defendant’s challenge to his sentence as cruel and unusual punishment is waived. As we explain, we find no abuse of discretion, no waiver or any merit in defendant’s contentions.
By separate order, we dispose of defendant’s petition for writ of habeas corpus raising additional contentions.
DISCUSSION
Denial of Motion to Strike Prior Convictions
After considering defendant’s motion to strike prior convictions pursuant to Romero, the trial court ruled as follows: “I’m commanded to look first at the current crime, and the current crime in the big scheme of things is sort of a middle of the road set of felonies, you know. [¶] As you pointed out several times not a violent offense. No one was hurt during the actual course of the crime. Somebody was without a van and certainly an ounce of crystal methamphetamine that was going to go some place in some combination inside you and others. I don’t know. [¶] I’m also commanded to look at the circumstances of the strike priors, and of course they’re not pretty. That’s why they’re strike priors, and I’m also commanded to look more closely at you, your character and your prospects for future rehabilitation, and from this – the words from your – your family members, your loved ones and the other references that you submitted are important. [¶] It is, in essence, an enigma. [Defense counsel’s] comments about whether or not methamphetamine caused you to steal a van, come to our county with a large quantity – with methamphetamine are interesting. It sort of begs the question how do drugs cause anything. Am I convinced that you have a huge methamphetamine problem? Yes. Could you be a methamphetamine addict? Yes. As we all understand that term, that seems likely. The bigger question though is whether drug addiction in and of itself is a reason to find that you’re outside the scope of the three strikes law. [¶] On that I’m afraid the answer has to be no. While loss of a van here or there may not endanger the community, I guess the argument is certain. [Sic.] Distribution of that ounce of crystal meth obviously endangers the community. [¶] Whether that was going to go into you, and by your own definition you can’t control yourself when you’re under the influence of methamphetamine, or if it was going to go into dozens of other people who arguably might have trouble controlling themselves while under the influence of methamphetamine. [¶] While I’m convinced you are not violent, those folks may be. We all know of many instances where people with methamphetamine induced problems commit violence in this community. I think distribution of methamphetamine is a great danger to the community. [¶] Accordingly, I cannot find that you are a person who is outside the three strikes law. Whether the law is a wise one or not, … I am compelled to follow the law.” (Italics added.)
Focusing on the language highlighted above, defendant argues that the trial court’s denial of his Romero motion constituted an abuse of discretion because it was based on “unsubstantiated speculation that … transportation of methamphetamine caused violence in the community.” For the following reasons, we disagree.
In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), our Supreme Court recently summarized the law applicable to review of a ruling on a Romero motion. “ ‘A court’s discretionary decision to dismiss or to strike a sentencing allegation under section 1385’ is reviewable for abuse of discretion.” (Carmony, at p. 373.)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. 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.” ’ [Citations.] 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.’ ” ’ [Citations.] 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, 33 Cal.4th at pp. 376-377.)
As the court further explained: “ ‘[T]he 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.)
Defendant analogizes his case to People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff). There, the defendant had registered with the chief of police and had not changed his residence, but he failed to comply with a more recently enacted requirement of Penal Code section 290 that he annually update his registration by confirming that his residence had not changed. The trial court denied the defendant’s motion to dismiss his prior strike convictions, stating that there had been “obfuscation” by the defendant beyond a mere technical violation of the registration requirements. (Id. at p. 1002.) On appeal, the Cluff court held that under the circumstances the trial court had abused its discretion in denying the defendant’s request to strike his prior convictions because “the evidence in the record [did] not support the inference of obfuscation that was central to the trial court’s ruling.” (Id. at p. 1004.) Because the evidence did not support the court’s reason for denying the Romero request, the court vacated the sentence and remanded the case for a new Romero hearing. (Id. at pp. 997-1005.)
The Cluff court strongly suggested that a three strikes term for a “technical” violation of Penal Code section 290 committed without the intent to deceive or evade law enforcement would constitute cruel and unusual punishment. (Cluff, supra, 87 Cal.App.4th at pp. 1001-1004.)
Defendant argues that here, as in Cluff, the trial court’s “perceived severity of the transportation offense was, to quote Cluff, ‘no more than a finding that [the defendant] was guilty of the crime for which he was convicted.’ [(Cluff, supra, 87 Cal.App.4th at p. 1004.)] As in Cluff, the mere fact that [defendant] was guilty of transportation of methamphetamine did not indicate that he distributed that methamphetamine into the community or that the methamphetamine he possessed was used by other people who then committed violence in the community.”
We do not find the analogy to Cluff persuasive. First, we do not view transportation of methamphetamine as on a par with a technical violation of a registration statute. Second, the trial court here had before it significant evidence that the circumstances of the current offense made it a more serious violation of the Health and Safety Code section 11379 than might otherwise appear at first blush. As noted by the trial court, the quantity being transported – 28 grams – was large. The evidence adduced at the preliminary hearing showed that the typical amount of methamphetamine possessed for personal use was between a quarter gram to approximately an eighth of an ounce, and that the amount of methamphetamine recovered from defendant’s hotel room had a monetary street value of $600 to $1,000 and was possessed for sale. Based on this evidence, the trial court was entitled to draw the inference that the methamphetamine in defendant’s possession was intended for distribution. It cannot be gainsaid that the distribution of methamphetamine creates problems for any community.
Defendant’s prior convictions placed him squarely within the parameters of the Three Strikes law. The burden was on him to demonstrate that he fell outside those parameters. The trial court considered defendant’s drug addiction, his history and prospects and the recommendations of family and friends and, balancing the positives against defendant’s prior convictions and the seriousness of his current offense, came to the conclusion that defendant did not fall outside the ambit of the Three Strikes law. That conclusion was not irrational on these facts. Given the deferential standard of review, we must conclude that the trial court’s denial of appellant’s motion to dismiss his prior strike convictions was not an abuse of discretion.
Cruel or Unusual Punishment
Defendant contends the sentence of 25 years to life imposed by the court under the Three Strikes law violates both the federal and state constitutions’ ban against cruel and/or unusual punishment. Specifically, he argues that a majority of the United States Supreme Court’s justices now endorse a narrow proportionality analysis for noncapital sentences, and that under a proportionality approach (which is also required by the state constitution), defendant’s sentence is unconstitutional.
We first address the Attorney General’s contention that defendant’s appellate challenge to his sentence is foreclosed by his failure to raise the constitutional issue in the trial court. We agree with defendant’s position that his Romero motion was implicitly “addressed to the fairness and proportionality” of a three strikes sentence in his case. In any event, we exercise our discretion to consider defendant’s constitutional claim. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.)
Defendant makes a detailed comparison of the Supreme Court’s opinions on cruel and unusual punishment in an effort to persuade us that a majority of the justices endorse a proportionality analysis for noncapital cases. However, we need not decide whether defendant’s reading of the United States Supreme Court’s recent cases interpreting the Eighth Amendment’s cruel and unusual punishment clause is correct, because proportionality review is the relevant test under the California Constitution’s cruel or unusual clause. (Cal. Const. art. I, § 17; In re Lynch (1972) 8 Cal.3d 410.) Lynch prescribes a tripartite test for determining whether a punishment “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (Lynch, at p. 424, fn. omitted.) Under Lynch, the proportionality of any given punishment is measured against the nature of the offense and the offender, against punishments for more serious crimes in the same jurisdiction, and against punishments for the same offense in foreign jurisdictions.
Inasmuch as California’s constitutional ban against cruel or unusual punishment may afford defendant broader protection than the federal constitution’s, we address only the California standard. A punishment that satisfies this standard necessarily also satisfies the federal standard. (Cf. People v. Anderson (1972) 6 Cal.3d 628, 634 [death penalty violates state Constitution], superseded by Cal. Const., art. I, § 27; compare Ewing v. California (2003) 538 U.S. 11, 21-25.)
Defendant argues that California’s Three Strikes law turns “what would have been no more than a four year determinate term … into a mandatory indeterminate term of 25-years-to-life.” Defendant’s argument ignores that he “was punished not just for his current offense but for his recidivism. Recidivism justifies the imposition of longer sentences for subsequent offenses.” (People v. Cooper (1996) 43 Cal.App.4th 815, 825.) According to the probation report, defendant’s record of recidivism included many felonies including first degree burglaries, grand theft auto, evading a police officer and violation of Health and Safety Code section 11379, numerous parole violations, and service of several prison terms.
Defendant also argues that “[a]n addict’s possession of drugs and a stolen car” is similar to the registration offense in People v. Carmony (2005) 127 Cal.App.4th 1066. We reject the analogy. In Carmony, a divided panel held it was cruel and unusual punishment to impose a life sentence based on a registered sex offender’s failure to “update” his current address within five days after his birthday, when he had updated it one month earlier and nothing had changed. The majority concluded that a punishment of 25 years to life was “grossly disproportionate to the gravity of the offense,” which “was an entirely passive, harmless, and technical violation of the registration law.” (Id. at p. 1077.) Whether or not we agree with the majority in Carmony, possession of a controlled substance and a stolen car is not on par with the offense in Carmony.
Defendant also argues that the sentence he received under the Three Strikes law is grossly disproportionate to other punishments he could have received if he had not come under the Three Strikes law. We reject this argument for the reasons stated fully in People v. Cooper, supra, 43 Cal.App.4th at pages 825-828, and People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1517.
Defendant argues that California’s Three Strikes law is significantly more punitive than the habitual offender statutes in most other states. “The assumption underlying the other-jurisdiction comparison is that the majority of those jurisdictions will have prescribed punishments for this offense that are within the constitutional limit of severity; and if the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of those jurisdictions, the disparity is a further measure of its excessiveness. (In re Lynch, supra, 8 Cal.3d at p. 427.) However … the needs and concerns of a particular state may induce it to treat certain crimes or particular repeat offenders more severely than any other state. Nothing in the prohibition against cruel or unusual punishment per se disables a state from responding to changed social conditions and increasing the severity with which it treats its recidivist felons.” (People v. Cooper, supra, 43 Cal.App.4th at p. 827.) This point was recently echoed in Ewing v. California, supra, 538 U.S. 11: “When the California Legislature enacted the three strikes law, it 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 Eight Amendment prohibits California from making that choice.” (Id. at p. 25; see also Harmelin v. Michigan (1991) 501 U.S. 957 [life without possibility of parole for possession of drugs].)
Finally, defendant points to the many hardships he suffered as a child, his history of hospitalizations for mental problems as a child, history of addiction and drug-related crimes and current age — essentially rearguing his Romero motion to us, pleading for leniency. But this is not the proper forum for such a plea. However, even if it were, given defendant’s lengthy record of serious crimes, we cannot say that defendant’s current sentence is unconstitutional under either the state or federal cruel and/or unusual clauses.
CONCLUSION
The trial court did not abuse its discretion in denying defendant’s Romero motion. Defendant’s three strikes sentence does not constitute cruel and/or unusual punishment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.