Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-068993C
DAVIS, J.
A jury convicted defendant Reginald Whitfield of second degree burglary and felony theft. (Pen. Code, §§ 459/460, 484, subd. (a)/666.) The trial court found defendant had two strikes--a 1993 robbery and a 1991 attempted robbery--and had served three prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, 667.5, subd. (b).)
The trial court denied defendant’s motion to strike the strikes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)), and sentenced defendant to prison for 28 years to life. Defendant timely appealed. He contends his sentence is cruel and/or unusual; that the court should have granted his Romero motion; that the trial court’s imposition of “parole for life” constituted an unauthorized sentence; and that the abstract needs to be corrected. We will order a correction to the abstract and affirm.
Background
Before trial began, defendant pleaded no contest to possession of controlled substance paraphernalia and stipulated to prior theft offenses.
At trial, a Roseville Home Depot gardening department supervisor testified that on April 8, 2007, defendant and another man loitered suspiciously in the garden department by the weed eaters for about 10 minutes and then grabbed two weed eaters each and separated. Defendant left the store “kind of running out the front door, so [the supervisor] followed him.” The supervisor saw defendant putting two weed eaters into a jeep and asked to see a receipt, but defendant drove off without closing the back of the jeep. The other man, who had dropped his weed eaters, said that defendant was stealing his car. Later, police took the supervisor to a jeep, and he identified two weed eaters in the back as store property. Two store clerks gave similar testimony, and one added that he had seen the jeep circling the parking lot earlier, which drew his attention; this was captured on videotape.
Roseville Police Officer Darren Kato heard a radio call regarding a theft in progress, which included a description of the jeep, and spotted it nearby. Phillip Schamburg was driving, defendant was in the passenger seat, and a woman was lying down in the rear. Two weed eaters were in the back. Officer Kato searched defendant. He had some pocket change, but no checks, credit cards or identification.
Discussion
I. “Three Strikes” Sentence
Defendant contends his sentence is infirm. First, he claims it is cruel and/or unusual punishment. Second, he claims the trial court abused its discretion by denying his Romero motion. Although these are distinct claims, the analysis overlaps to such a degree that we discuss them together. For purposes of argument, we overlook trial counsel’s failure to lodge a cruel and/or unusual punishment claim, obviating the need to address defendant’s claim that trial counsel was incompetent, because we can resolve the issue on the appellate record. (See People v. Meeks (2004) 123 Cal.App.4th 695, 706-707.)
A. Romero Claim
As reflected in defendant’s Romero motion itself, his California record includes the following:
1991
Petty theft
(misdemeanor 1)
1991
Drug possession
(Cal. felony 1)
1991
(Cal. felony 2, strike 1)
1992
Grand theft person
(misdemeanor 2)
1993
Robbery
(Cal. felony 3, strike 2)
1995-1999
(parole violations 1-6)
2000
Receipt of stolen property
(misdemeanor 3)
2000
Possession of drug paraphernalia
(misdemeanor 4)
2000
Petty theft w/prior
(misdemeanor 5)
2000
Obstructing arrest
(misdemeanor 6)
2000
Possession of drug paraphernalia
(misdemeanor 7)
2001
Petty theft w/prior
(misdemeanor 8)
2001
Accessory
(Cal. felony 4)
2002
(violation of probation, sent to prison)
2002-2005
(parole violations 7-13)
2005
Loitering
(misdemeanor 9)
2005
Vehicle theft
(misdemeanor 10)
2005
Possession of drug paraphernalia
(misdemeanor 11)
2005-2006
(parole violations 14-15)
Although this offense was listed as a “robbery” in defendant’s moving papers, the discussion, as well as other documents in the record, reflect that it was actually an attempted robbery.
Further, in 1988 defendant was convicted of two Alabama felonies. Although these offenses were initially contested, the People’s supplemental opposition included certified records evidencing a third degree robbery conviction and a second degree escape conviction in the same case, leading to a five-year commitment to the Alabama state penitentiary. At the Romero hearing, defense counsel simply noted that part of those records described the escape as an act of following others through a hole in a fence, and defendant had advised counsel that the third degree robbery arose from an argument, after which defendant drove off in his friend’s car.
In his Romero motion, defendant claimed the facts of the two strikes were minor. In the 1991 case, defendant approached the victim, told him he was a drug addict, and demanded the victim’s wallet, while pointing his hand (which was wrapped in a shirt) at the victim. In the 1993 case, defendant stole meat from a market and then fought with store employees. Although defendant continued to commit crimes, counsel argued “the majority of his crimes are misdemeanors and his criminal activity is of decreasing seriousness.” And, although he admitted “numerous violations of parole,” counsel attributed them to “a revolving door of homelessness, wherein he gets out of custody and has no place to go and no transportation and is not able to physically get to parole to comply with their terms.”
In addition to the two strikes for robbery and attempted robbery, the trial court had evidence that defendant had amassed four other felonies (the Alabama third degree robbery and second degree escape and the California drug possession and accessory convictions), 11 misdemeanors, and 15 parole violations by the age of 43. In denying the Romero motion, the trial court correctly observed that defendant has been involved with criminality nearly his entire adult life. We review the trial court’s denial of defendant’s Romero motion for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)
“The touchstone of the analysis must be ‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” (People v. Philpot (2004) 122 Cal.App.4th 893, 905 (Philpot).)
Admittedly, in defendant’s favor, the current incident was not serious. Defendant and an accomplice entered a store to steal merchandise, and when store personnel caught on, defendant fled, taking the merchandise. This incident does not of itself portray defendant as a dangerous criminal. But it is proper that defendant is more harshly punished because he has failed to conform his conduct to societal norms by committing his life to criminality. (See People v. Strong (2001) 87 Cal.App.4th 328, 344 [“the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law”].)
Defendant also seeks to minimize the strikes, claiming they did not involve violence. As indicated above, this is not correct. In the attempted robbery, defendant simulated a weapon wrapped in a cloth and demanded money, stating he was a drug addict. In the robbery, after defendant was confronted by store personnel, he fought with them. Therefore, we reject his claim that the facts of the strikes do not reflect serious behavior: One involved a threat of being shot and the other involved violence.
Nor were the strikes remote. A prior is deemed remote when it is followed by a long crime-free period. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [“Where, as here, the defendant has led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating about a 20-year-old prior”].) Defendant has led a continuously crime-ridden life after the strikes, with yearly new offenses or parole violations. In such circumstances, the 1991 and 1993 strikes cannot be said to be remote. (Philpot, supra, 122 Cal.App.4th at p. 906.)
Defendant has an escape conviction and an obstructing arrest conviction which, together with his other crimes and parole violations, reflect a rejection of societal norms. He at times has used force or threats. He persists in violating the law, making him a “‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) In such circumstances, the trial court acted well within its discretion in denying the Romero motion.
B. Cruel and/or Unusual Punishment Claim
It would seem that the conclusion that a Romero motion was properly denied would indicate the sentence was not unduly cruel. (See 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 355, p. 460 [collecting cases].) However, there might be an unusual case to the contrary. (Compare Carmony, supra, 33 Cal.4th 367 [proper to deny Romero motion] with People v. Carmony (2005) 127 Cal.App.4th 1066 [on remand in same case, finding sentence unduly cruel, over a dissent].)
A punishment violates the California Constitution “if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) In applying this principle, we look to: (1) the nature of the offense and the offender; (2) a comparison with the penalty for more serious crimes in the same jurisdiction; and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-429.)
In considering the nature of the offense and the offender, we observe that defendant is a persistent criminal not above using threats or violence. This crime was planned beforehand, as defendant and another man entered the store and took the same kind of merchandise, while a third person waited outside in the getaway vehicle. The nature of this crime, while not violent, shows defendant has not made any effort to restrain his larceny.
Defendant presents a cursory in-state comparative argument, claiming that a third-striker who commits a rape, arson or voluntary manslaughter will receive the same sentence of 25 years to life defendant received (exclusive of his three prison term priors). But defendant fails to show that someone who commits a more serious current crime is treated less harshly, only at best that third-strikers are treated equally. That does not indicate a disproportionate sentence. Further, his math is wrong. Rape, arson and voluntary manslaughter are “serious” felonies. (Pen. Code, § 1192.7, subd. (c)(1), (3), (14).) Therefore, in addition to a three-strikes sentence, such a hypothetical person would also receive two five-year enhancements for the strikes. (Id., § 667, subd. (a)(1); see People v. Askey (1996) 49 Cal.App.4th 381, 389.) Thus, defendant’s comparison is inapt.
Defendant’s sister-state comparison is also flawed. Defendant presents a lengthy argument showing the punishment for theft or shoplifting in other jurisdictions. But he overlooks the fact that he was also convicted ofsecond degree burglary. His discussion of punishments in other states does not include a comparison of punishments for commercial burglary, and therefore is inapt. Further, the fact, if it is a fact, that California would impose the highest sentence on crimes arising from these facts, would not suffice, because a state is not required to stay in the middle of the road. (See People v. Romero (2002) 99 Cal.App.4th 1418, 1430, 1433.) The Three Strikes sentence does not shock this court’s conscience, nor does it offend fundamental notions of human dignity, and, in short, is not disproportionate under California law.
Defendant concedes federal law applies a similar test. “The Eighth Amendment [to the United States Constitution], which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108].) This principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [155 L.Ed.2d 144].)
This is not a rare or extreme case. As just explained, defendant’s sentence is not grossly disproportionate to the crime, given his criminal record.
Accordingly, the Three Strikes sentence was proper.
II. Parole Misadvice
At the sentencing hearing, the trial court advised defendant that upon his release from prison, he would be on parole for life. The parties agree that defendant will only be on parole for five years. (Pen. Code, § 3000, subd. (b)(2).) However, as the People point out, the trial court did not order that any future parole be for life, it merely misadvised defendant about the length of parole. Therefore, we have nothing to correct as no consequences flow from that misadvice.
III. Mistake on Abstract
The abstract has one check mark in a box indicating “life with the possibility of parole” and another in a box indicating “25 years to life.” The parties agree that the former box should not be checked, as the latter box accurately states defendant’s Three Strikes sentence. The trial court must prepare a corrected abstract.
Disposition
The judgment is affirmed. The trial court is directed to correct the abstract of judgment in the manner set forth in part III of the Discussion, ante, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J., MORRISON, J.
Retired Associate Justices of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.