Opinion
G051593
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL LEE STAHLHEBER, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14HF1579) OPINION Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Nathaniel Lee Stahlheber of exhibiting a deadly weapon to resist arrest. (Pen. Code, § 417.8.) The statute mandated a prison term of two, three, or four years. (Ibid.) However, the trial court found unusual circumstances existed and granted Stahlheber three years formal probation. On appeal, Stahlheber maintains section 417.8's authorized sentence constitutes cruel and unusual punishment because it is more severe than if he committed a more serious crime, namely section 417.6 [wobbler offense requiring intentional infliction of serious bodily injury while exhibiting a deadly weapon]. He suggests section 417.8 is a lesser included offense of section 417.6, and due to the holding of People v. Schueren (1973) 10 Cal.3d 553 (Schueren), we must remand his case to allow the trial court to consider whether his offense should be declared a misdemeanor. Finding all his contentions lack merit, we affirm the judgment.
All further statutory references are to the Penal Code, unless otherwise indicated.
I
To prove its case, the prosecution introduced evidence of two incidents. First, there was the current offense taking place in May 2014, and second, there was evidence of Stahlheber's prior misconduct in April 2013. Because the issue raised on appeal is a pure legal question regarding the sentencing scheme of section 417.8, we need not discuss the underlying facts in detail. Suffice it to say, in May 2014 Stahlheber fled from police officers who were investigating a suspected open alcohol container violation. Despite hearing several verbal commands to stop, Stahlheber ran into a park where a deputy eventually stopped him. Stahlheber faced the deputy and raised a knife over his head while moving towards him. In response, the deputy pointed his gun at Stahlheber and commanded him to stop. Stahlheber again fled, but a deputy soon captured him.
The prior incident of misconduct, occurring in April 2013, also began with a police officer questioning Stahlheber about what appeared to be an open container of alcohol. He repeatedly threatened the deputy and attempted to flee. During the altercation, he attempted to hit the deputy and reached for the deputy's taser. Stahlheber struggled during his arrest while holding a three-inch knife.
The information charged Stahlheber with exhibiting a deadly weapon to resist arrest (§ 417.8, count 1) and resisting an officer (§ 148, subd. (a)(1), count 2.) Before trial, the court granted the prosecutor's motion to dismiss count 2. A jury found Stahlheber guilty of the charged offense, and the court suspended imposition of sentence and placed him on formal probation for three years, with various terms and conditions.
II
The sole issue raised on appeal is whether the statutorily prescribed prison terms mandated by section 714.8, violate California's decree against cruel or unusual punishments found in article 1, section 17 of our constitution. "[A] statutory punishment may be cruel and unusual either on its face—or as applied to the particular defendant and offense. [Citations.]" (People v. King (1993) 16 Cal.App.4th 567, 573.) As we will explain below, Stahlheber's appeal relies on the second theory, i.e., the punishment is cruel and unusual as applied to him and the offense.
Because we decide this constitutional issue on the merits, we need not resolve the parties' dispute regarding whether the claim was forfeited. --------
Stahlheber was convicted of violating section 417.8, a felony, which provides, "Every person who draws or exhibits any firearm, whether loaded or unloaded, or other deadly weapon, with the intent to resist or prevent the arrest or detention of himself or another by a peace officer shall be imprisoned in the state prison for two, three, or four years."
Although no one was hurt in this case, if Stahlheber had seriously injured the police officer he could have been charged with a wobbler offense, found in section 417.6, which provides, "(a) If, in the commission of a violation of [s]ection 417 or 417.8, serious bodily injury is intentionally inflicted by the person drawing or exhibiting the firearm or deadly weapon, the offense shall be punished by imprisonment in the county jail not exceeding one year or by imprisonment in state prison."
Thus, Stahlheber does not contend the term of two, three, or four years for exhibiting a deadly weapon with the intent to prevent arrest (§ 417.8) is per se cruel or unusual. Instead, he argues that because there is a less severe punishment for a more serious related crime (section 417.6), the punishment for section 417.8 constitutes cruel and unusual punishment.
"Defining crime and determining punishment are matters uniquely legislative in nature, resting within the Legislature's sole discretion. [Citations.] A defendant who challenges a punishment as cruel or unusual bears the burden of establishing that it 'is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Fn. omitted.]' [Citations.] 'Unless this standard is met and unconstitutionality appears, clearly, positively, and unmistakably [citation], the courts will not tamper with the legislative directive.' [Citations.]" (People v. Macias (1982) 137 Cal.App.3d 465, 475-476 (Macias) citing In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).)
"In determining whether a punishment is disproportionate to the offense, the Supreme Court in . . . Lynch, supra, 8 Cal.3d 410, 425-427, acknowledged that case precedent establishes the use of three distinct techniques, including: (1) 'the nature of the offense and/or the offender with particular regard to the degree of danger both present to society' [citation]; (2) a comparison of 'the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which . . . must be deemed more serious' [citation]; and (3) 'a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision' [citations]. These criterion constitute a three-part analytical examination of a punishment, as each 'inquiry is not mechanical but will, if the results warrant, provide an additional ground for suspecting the constitutionality of the challenged penalty.' [Citation.] In other words, 'these tests are an aid in determining proscribed disproportionality, not in and of themselves conclusive; the ultimate test remains whether the punishment prescribed shocks the conscience and offends fundamental notions of human dignity.' [Citations.]" (Macias, supra, 137 Cal.App.3d at p. 476.)
Stahlheber relies on the second technique cited in Lynch, the theory his crime was a lesser included offense of section 417.6, plus the holding of Schueren, supra, 10 Cal.3d at pages 559 to 560. In that case, our Supreme Court affirmed its decision in People v. Anderson (1972) 6 Cal.3d 628, 654 (Anderson), giving a literal interpretation of the word "unusual." The Schueren opinion stated, "It is evident from . . . Anderson, . . . however, that a 'disproportionate' test is no longer the sole method of determining whether a penalty is 'unusual' within the meaning of article I, section 6. Anderson concluded [citation] that the worldwide trend toward abolition of capital punishment in civilized countries and the fact that in California today the death penalty is rarely imposed and even more rarely carried out combined to render that penalty 'unusual' within the meaning of the foregoing constitutional provision." (Schueren, supra, 10 Cal.3d at p. 560, fn. omitted.) Applied to the case before it, the court in Schueren held a term exceeding 14 years for assault with a deadly weapon (§ 245) was sufficiently "unusual" punishment and unconstitutional because if defendant had pleaded guilty to the charged greater offense of assault with a deadly weapon with intent to commit murder (§ 217) the maximum term could not have been more than 14 years. (Ibid.)
By asserting his constitutional rights against self-incrimination and to a jury trial, the Schueren defendant successfully defended against the crime charged (§ 217), but the jury found him guilty of the lesser included offense of assault with a deadly weapon providing for a term of six months to life. (Schueren, supra, 10 Cal.3d at p. 560.) The court held, "Under the circumstances we believe that a prison term exceeding 14 years is, literally, an 'unusual' punishment--i.e., a punishment that in the ordinary course of events is not inflicted. It would seem indisputable that an accused is normally not subject to an increased maximum prison term as a consequence of, inter alia, exercising his constitutional rights and successfully defending against the crime charged. In our opinion such a term under the circumstances is contrary to 'the requirements of regularity and fairness' embodied in article I, section 6 [citation]." (Id. at pp. 560-561.) Simply stated, what rendered defendant's sentence unconstitutional in Schueren was that defendant received a potentially greater sentence by virtue of successfully defending against the charged crime.
The Schueren case is clearly distinguishable from the one before us. Stahlheber cannot claim he has been prejudiced by asserting his constitutional rights to self-incrimination and trial by jury. He did not successfully defend against the charged crime, and he did not receive a greater sentence for a necessarily lesser included offense. Rather, a jury found Stahlheber guilty of the crime charged and nothing more. On its face, there was nothing unusual about his sentence.
Moreover, as pointed out by the Attorney General, section 417.8 is not a necessarily lesser included offense of section 417.6. Simply stated, section 417.6 penalizes a person who caused serious bodily injury while violating section 417 or 417.8. Thus, it is possible to violate section 417.6 by satisfying the elements of only section 417, a crime having very different elements from its counterpart, section 417.8.
For example, section 417 penalizes those drawing, exhibiting, or using a firearm/deadly weapon in the presence of any person. Whereas, section 417.8 addresses drawing or exhibiting a deadly weapon to resist arrest by a peace officer. Due to this distinction, we conclude the greater crime can be committed without necessarily committing the other offense (which in this case was section 417.6). (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Pruett (1997) 57 Cal.App.4th 77, 87 [violation of section 417, subd. (a)(1), not necessarily subsumed with a violation of section 417.8].)
"Moreover, the net effect of the relief provided within the Schueren decision (i.e., the modification of the sentence for the lesser included offense downward to the maximum potential term for the more serious, originally charged offense) is the imposition of the same potential maximum punishment for both the greater and lesser offenses . . . ." (Macias, supra, 137 Cal.App.3d at p. 477.) In this case, Stahlheber asks this court to remand the matter and allow the court to exercise its discretion and declare his offense a misdemeanor. However, he fails to articulate if this relief is constitutionally available. He offers no reason to declare section 417.8 invalid or suggest under what authority we can legislate a new sentencing structure for that provision.
In conclusion, "The legislative function of determining crimes and imposing penalties is not an exact science. [Citations]." (Macias, supra, 137 Cal.App.3d at p. 477.) Stahlheber "has not shown his punishment to be so disproportionate to his crime as to shock the conscience and offend fundamental notions of human dignity." (Ibid.)
III
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.