Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN255863 Joan P. Weber, Judge.
HUFFMAN, J.
A jury convicted Michael Kevin White of unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)); two counts of receiving stolen property (Pen. Code, § 496, subd. (d)); and one count of receiving stolen property (§ 496, subd. (a)). The trial court found true five serious/violent felony (strike) prior convictions within the meaning of section 667, subdivisions (b) through (i) and three prison priors within the meaning of section 667.5, subdivision (b). The court sentenced White to an indeterminate term of 25 years to life on each of the four counts, but stayed the sentences on counts 2 through 4 pursuant to section 654. The court struck the three prison priors.
All further statutory references are to the Penal Code unless otherwise specified.
White appeals, challenging the restitution orders imposed by the court as part of his prison sentence, and he contends the imposition of a 25-year-to-life term amounts to cruel and unusual punishment. We will find the issues regarding the restitution orders have been waived, that White has not demonstrated that his trial counsel was ineffective and that on the merits, the sentence imposed does not amount to cruel and unusual punishment and affirm the judgment.
STATEMENT OF FACTS
Since White does not challenge either the admissibility or the sufficiency of the evidence to support his convictions we will set forth an abbreviated statement of the facts of the case simply to provide background for the discussion which follows.
Between December 21 and 23, 2008 a tractor and trailer were stolen in Downey, California. During the same time a trailer was stolen from the Lynwood facility of Aaron Industries. The trailer was loaded with 70, 000 bottles of expired cold medicine containing pseudoephedrine awaiting destruction.
In December 2008, White was on parole. He was wearing a global positioning system (GPS). The device indicated that White was in the location of both thefts during the times they were likely committed.
At about 7:40 a.m., White drove the stolen tractor with the trailer, which had been stolen from Aaron Industries, to the California Highway Patrol (CHP) inspection center on Interstate 5 at San Onofre. The trailer was overweight and White was required to drive the truck to a separate location at the CHP facility. Ultimately, White drove the tractor and trailer away from the facility and was pursued by CHP officers, stopped and required to return to the facility.
Subsequent investigation discovered that the license plates on the vehicle did not belong to that vehicle. A record search of the vehicle identification numbers revealed the tractor and trailer had been stolen and White was arrested.
DISCUSSION
I
WHITE HAS FORFEITED ANY CHALLENGE TO THE RESTITUTION ORDERS
The probation report prepared for the sentencing hearing indicated that restitution was due to the owner of the tractor and that Aaron Industries had not yet requested restitution. The report recommended that restitution be awarded to the tractor owner and that the court should order restitution to Aaron Industries in an amount "to be determined." The trial court, without objection, granted the probation officer's requested restitution orders.
White seeks, for the first time on appeal, to challenge the validity of the restitution orders. He contends the restitution amounts are not for any conduct for which he has been convicted. The Attorney General responds contending the issue has been forfeited by failing to raise the issue in the trial court. We agree with the Attorney General and find the issues regarding restitution have been forfeited and therefore do not reach the merits of White's contentions.
A. Legal Principles
It is well established that failure to challenge a discretionary sentencing decision in the trial court will prevent the defendant from raising the issue for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Smith (2001) 24 Cal.4th 849, 852.) There is an exception to the rule where the issue is one of law, as in an unauthorized sentence, as opposed to a decision within the trial court's power, but is challenged on its factual underpinning. (Ibid.)
As a general proposition, decisions regarding the amount of restitution due to a victim are fact-based issues and thus subject to forfeiture. (People v. Foster (1993) 14 Cal.App.4th 939, 943-944.)
In this case, the tractor owner was clearly a victim who reported an economic loss in the taking and driving of his tractor. The probation report, of which White had notice, set forth the amount of restitution claimed by the victim and the basis for the probation officer's recommendation to order such restitution. White raised no objection to either the victim's entitlement to restitution or the amount to be ordered. White's failure to raise the issue prevented the trial court or the parties from exploring the circumstances of the request, thus avoiding the creation of a record from which we can review the trial court's discretionary decision. Accordingly, we find White's challenges to the restitution orders have been waived and cannot be raised on this appeal.
Although the trial court ordered restitution for Aaron Industries, it did not set an amount. Thus, any claim of error regarding this victim is premature. When, and if, a restitution hearing is scheduled to address restitution for this victim, White will have the ability to address it in the trial court.
B. White Has Failed to Show Trial Counsel Was Ineffective in Failing to Challenge the Restitution Orders.
White contends that if his challenges to the restitution orders are found to be waived, his trial counsel was ineffective within the meaning of the Sixth Amendment. We find White has not met his burden to establish constitutional ineffective assistance of counsel.
In order for a defendant to show that trial counsel's performance was constitutionally defective, the defendant must prove: (1) that counsel's performance fell below the standard of reasonableness, and (2) that the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
In the present case the record does not provide this court with any information from which we could determine whether White has met his burden to show ineffective assistance of counsel. All we know from this record is that counsel did not challenge the restitution orders or amounts. We cannot simply assume ineffective representation without a record that demonstrates trial counsel's reasoning. This is particularly true when reviewing a sentencing hearing where counsel is trying to mitigate the defendant's possible prison term. An order of restitution, which may never be paid by the defendant, may not have been the important tactical focus of defense counsel. Our Supreme Court has observed that most often an appellate court cannot fairly evaluate counsel's performance at trial based upon a silent record. The court concluded that in many instances evaluation of a claim of ineffective assistance of counsel will have to await a petition for habeas corpus, should the defendant believe there is a viable claim that can be pursued. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Accordingly, we find no basis in this record to find White's trial counsel provided ineffective representation at the sentencing hearing.
II
CRUEL AND UNUSUAL PUNISHMENT
Relying basically on In re Lynch (1972) 8 Cal.3d 410 and People v. Dillon (1983) 34 Cal.3d 441 (Dillon), and to a lesser extent on the Eighth Amendment as applied to the states through the Fourteenth Amendment, White claims his life term for his current, nonviolent, property crimes is "grossly disproportionate and shocks the conscience, " thereby constituting cruel and/or unusual punishment under the United States and California Constitutions. Although conceding that he is subject to the life terms based upon "five serious or violent priors" which were found true as strikes, White does not challenge the general facial constitutionality of the three strikes statutory scheme, but rather asserts its application to him is unconstitutionally excessive and disproportionate to his culpability in this case.
In re Lynch applied a three-pronged approach to determine whether a particular punishment is disproportionate to the offense for which it is imposed. (In re Lynch, supra, 8 Cal.3d at pp. 429-438.) Under the first prong, the California Supreme Court examined the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Id. at p. 425.) Second, the court compared the challenged punishment with that prescribed for more serious crimes in the same jurisdiction. (Id. at p. 426.) Finally, the challenged punishment was compared with punishments for the same offense in other jurisdictions. (Id. at p. 427.) After its analysis, the court there held an indeterminate sentence of one year to life for recidivists who commit indecent exposure under section 314 was void as cruel or unusual punishment. (In re Lynch, supra, 8 Cal.3d at p. 439.)
In Dillon the California Supreme Court reaffirmed In re Lynch, supra, 8 Cal.3d 410, and concluded that under the facts of that case, the life imprisonment of a 17-year-old defendant for first degree murder based on a felony-murder theory violated California's constitutional prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at pp. 450-452, 477, 482-483, 489.) The court in so deciding refined the first Lynch prong, stating trial and reviewing courts should examine "not only the offense in the abstract[, ]" but also "'the facts of the crime in question.' [Citation.]" (Id. at p. 479.) Courts should consider "the totality of the circumstances" including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts. (Ibid.) With respect to the nature of the offender, a court should ask whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
The prohibition against cruel or unusual punishment is contained in California Constitution, article I, section 17.
White does not challenge the trial court's denial of his motion to strike his priors below.
White did not raise this claim in the trial court. Although such claim is thus technically waived (see People v. Kelley (1997) 52 Cal.App.4th 568, 583), it is also totally without merit. White simply fails to appreciate the punishment under scrutiny here is not only the result of his current offenses, but also the result of his recidivist history. From our independent review of the record in light of the applicable law, we conclude application of the Three Strikes law in this case is not cruel and/or unusual. As to California's separate constitutional prohibition against cruel or unusual punishment, we note the power to define crimes and prescribe punishment is a legislative function and the courts may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate the constitutional prohibition. (In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Ultimately, the test whether a specific punishment is cruel or unusual is whether it is " 'out of all proportion to the offense'... so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinson v. California (1962) 370 U.S. 660, 676 and citing In re Lynch, supra, 8 Cal.3d at p. 424.)
As we noted in In re DeBeque, the analysis developed in In re Lynch, supra, 8 Cal.3d 410 and Dillon, supra, 34 Cal.3d 441, merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each criteria depends on the facts of the specific case. (In re DeBeque, supra, 212 Cal.App.3d at p. 249.) Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g., Dillon, supra, 34 Cal.3d at pp. 479, 482-488; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311), the defendant has the burden of establishing his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254-255.) Successful challenges to proportionality are an "exquisite rarity." (Weddle, supra, 1 Cal.App.4th at p. 1196.)
Here, White has not met that burden. As noted above, White's punishment is controlled in the first instance by his committing his current offenses while having previously been convicted of five serious or violent felonies including oral copulation by force, kidnapping, robbery, and assault with a deadly weapon. That the Legislature saw it necessary to enact statutes and sentencing schemes to impose harsher punishment for recidivist offenders like White does not shock our conscience. It was his prior convictions coupled with his present conduct that qualified him for punishment under the Three Strikes law. We believe mandatory imposition of the legislatively required term was proper absent a showing White fell outside the spirit of the Three Strikes law, which has not been shown.
Moreover, even if we review the matter by analyzing the factors under the first prong of In re Lynch, supra, 8 Cal.3d 410 (nature of the offense and/or offender), as refined in Dillon, supra, 34 Cal.3d 441, we reach the same conclusion that the total 25-year-to-life term imposed in this case does not constitute cruel or unusual punishment. Unlike the youthful 17-year-old first-time offender in Dillon, White was 52 years old at the time he committed the current offenses. Additionally, White had served three prior prison terms for five prior serious or violent prior convictions and had been in and out of prison on parole violations before his current conduct.
Although White attempts to show that his life term is disproportionate under the second Lynch prong, such comparisons fail. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals (see In re Rosencrantz (1928) 205 Cal. 534, 535-536, 539-540; People v. Weaver (1984) 161 Cal.App.3d 119, 125-126), it is illogical to compare White's punishment for his "offenses, " which include his recidivist behavior, to the punishment of others who have committed the same underlying or more serious crimes such as first degree murder, but are not qualified repeat felons. Such other offenders would likely receive similar or longer sentences under the Three Strikes law if such was applicable to them because of recidivist conduct. White presented no evidence regarding sentences imposed for similar offenses or sentencing schemes in other jurisdictions.
Moreover, in light of the holdings in Harmelin v. Michigan (1991) 501 U.S. 957, Rummell v. Estelle (1980) 445 U.S. 263, 284-285, and the more recent United States Supreme Court companion cases of Ewing v. California (2003) 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63, which held lengthy indeterminate life sentences imposed under California's Three Strikes law for recidivist criminals did not violate the Eighth Amendment, any reliance in this case upon the federal prohibition of cruel and unusual punishment would likewise be unsuccessful. As already noted, White suffered five prior serious or violent felony convictions before the offenses in this case. He had served three prior prison terms and had been returned to prison several times for parole violations before committing the current crimes. White was on parole at the time of the current offense.
Given all the relevant considerations, the fact White will serve 25 years to life for his current case simply does not shock the conscience or offend concepts of human dignity. We thus conclude White has failed to show his sentence is so disproportionate to his "crimes, " which include his recidivist behavior, and that the lengthy term imposed for this case does not violate the constitutional prohibitions against cruel and/or unusual punishment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J.O'ROURKE, J.