Opinion
C050626
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. BERNARD WILDEE, Defendant and Appellant.
In the early morning hours of November 25, 2004, Sacramento police detained defendant Bernard Wildee and his cousin LeAndrew Smith. The officers observed the two men sitting in a maroon Mustang on G Parkway. The car was parked about a quarter of a mile from where a residential burglary had taken place a few minutes before. Defendant initially gave the officers his Swahili name and denied he was on probation or parole. When questioned further by the police, defendant stated he had a "baby gun" in the car, provided his true name, and admitted he was on parole. The officers found a loaded .38-caliber revolver under the front passenger seat.
A jury convicted defendant of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1) — count one), unlawful possession of a concealed firearm (§ 12025, subd. (b)(6) — count two), and unlawful possession of a loaded firearm (§ 12031, subd. (a)(2)(F) — count three). The jury also found true allegations defendant had suffered two prior serious felony convictions (§§ 667, subds. (b)-(i), 1170.12 & 1192.7, subd. (c)) and had served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to state prison for three terms of 25 years to life plus one year for the prior prison term enhancement. It stayed the sentences in counts two and three pursuant to section 654. The court awarded defendant 56 days of presentence conduct credit.
On appeal, defendant argues: (1) the court erred in denying his motion to suppress because the officers detained him without a reasonable suspicion he was involved in criminal activity; (2) he was deprived of his right to effective assistance of counsel at trial; (3) the court abused its discretion in refusing to strike one of his prior felony convictions; (4) the sentence of 25 years to life was cruel and unusual punishment under the federal and state Constitutions; and (5) the court erred in calculating his presentence conduct credits. We shall modify the judgment to award defendant 140 days of presentence conduct credit and affirm the judgment as modified.
DISCUSSION
I
The Motion to Suppress Evidence
Defendant contends he is entitled to reversal because the court erred in denying his motion to suppress evidence seized in a search of the maroon Mustang. He challenges only his initial detention on grounds the officers lacked an articulable suspicion he had committed a crime. We conclude the detention was lawful.
A. What Constitutes a Lawful Detention:
Under our federal and state Constitutions, a detention occurs if, in view of all the surrounding circumstances, a reasonable person would believe he was not free to leave or otherwise disregard a show of police authority. (California v. Hodari D. (1991) 499 U.S. 621, 627-628 [113 L.Ed.2d 690, 697-699]; People v. Souza (1994) 9 Cal.4th 224, 229 (Souza).) "[A] police officer can detain a person when the officer is aware of `specific and articulable facts suggesting `that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he [or she] intends to stop or detain is involved in that activity. [Citation.]" (People v. Limon (1993) 17 Cal.App.4th 524, 531-532 (Limon).) When viewed alone, the fact a suspect was observed at night or in a high crime area is not enough to justify a detention. However, such facts may establish the required articulable suspicion when considered in combination with one or more other suspicious facts. (Souza, supra, at pp. 240-241.)
The trial courts task on a motion to suppress evidence "is to find historical facts, select the appropriate rule of law, and apply the latter to the former to determine whether the rule so applied was or was not violated. . . . [A]s the reviewing court, [we] must uphold the trial courts findings of fact if they are supported by substantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1036.) We independently review the question whether the detention was reasonable. (Ibid.)
B. Testimony at the Suppression Hearing:
At 1:16 a.m. on November 25, 2004, Sacramento Police Officers David Eagleton and Clay Quint responded to a call via dispatch that a residential burglary was in progress on Meadowgate Drive. Officers Eagleton and Quint arrived near the burglary scene at approximately 1:30 a.m., and waited briefly for a canine unit to join them.
Officer Eagleton saw three Black males outside the house where the burglary was reported to be taking place. One of the suspects ran eastbound and Officer Quint gave chase. The two Black males closest to Officer Eagletons patrol car ran north on Meadowgate. Officer Eagleton followed them and apprehended a suspect named Moore. The other suspect got away. Officer Eagleton broadcast a description of the two Black men he was chasing. One suspect was wearing a black sweatshirt or sweater and blue jeans, and the other wore a black sweatshirt and black pants. He said the suspects were running north. A few minutes later, Officer Eagleton saw a silver four-door car speed down Meadowgate with a Black male inside. Officer Eagleton put out a description of the vehicle.
Officers Ryan Bullard and Joseph Bailey heard a dispatch about the foot pursuit of burglary suspects a little after 1:30 a.m., and drove to the scene. They contacted Officer Eagleton on Meadowgate Drive about 1:40 a.m. Officer Eagleton advised Officers Bullard and Bailey that one of the suspects had run southbound on Mandy Drive from Meadowgate wearing a black hooded sweatshirt and jeans.
Officers Bullard and Bailey drove to G Parkway where they "saw a red parked Mustang" on the street. There were two Black males in the car. The man in the front passenger seat was wearing what appeared to be a hooded, black jacket. The Mustang was legally parked with its lights off approximately one-quarter mile from the scene of the burglary. Officer Bullard thought the two men might be involved in the burglary because of the time of night, how the passenger was dressed, and the proximity to the crime scene.
The two officers stopped their patrol car in front of the Mustang and turned on their spotlights. With Officer Bailey providing cover, Officer Bullard approached the drivers side of the Mustang with his firearm drawn but at his side. He told the occupants to show him their hands, and they complied. When asked, the driver identified himself as LeAndrew Smith, gave his date of birth and said he was on probation. Defendant provided no identification, but told Officer Bullard his name was Zuri Askarie, gave his date of birth as August 28, 1974, and said he was not on probation or parole.
When Officer Bullard returned to the patrol car, he identified Smith in his automated system and learned he was on formal, searchable probation. Officer Bullard became suspicious when he was unable to locate anyone named Zuri Askarie in the computer system.
Officer Bullard asked Smith to step out of the Mustang, conducted a probation search, and put him in the back of the patrol car. Bullard asked defendant to step out of the car and conducted a patdown search for weapons. When asked if he had any weapons on him, defendant replied that he had a "baby gun." He told Bullard the gun was under the front passenger seat but it did not belong to him. Officer Bullard conducted a full search of defendant, placed him in handcuffs, and set him on the sidewalk. At that point, defendant admitted his real name was Bernard Wildee and he was on parole. Officer Bailey searched the Mustang and found a handgun that was fully loaded.
Defendant testified at the suppression hearing. He explained he gave Officer Bullard his Swahili name, Zuri Askarie, which he had used since he was 18 years old. Defendant admitted he lied to police about not having identification because he was on parole. However, defendant denied saying he had a "baby gun" in the car.
The court denied defendants motion to suppress. It found Officers Bullard and Bailey were justified in detaining defendant whom they observed with Smith at 1:30 in the morning, in a car with headlights off, away from any residences, parked on a dead-end street in close proximity to the burglary scene. The court also found there was probable cause to conduct the search once defendant gave the officers false information about his name and indicated there was a "baby gun" in the car.
C. The Detention Was Lawful:
The parties agree defendant was detained within the meaning of the Fourth Amendment when Officer Bullard approached the Mustang with his weapon drawn. The question is whether that detention was justified by an articulable suspicion that defendant had committed a crime. (Florida v. Royer (1983) 460 U.S. 491, 498 [75 L.Ed.2d 229, 236]; Limon, supra, 17 Cal.App.4th at pp. 531-532.)
The record supports the conclusion the detention was lawful. Around 1:40 a.m., Officers Bullard and Bailey responded to a dispatch concerning the foot pursuit of at least two suspects in a residential burglary on Meadowgate Drive. They spoke with Officer Eagleton at the scene. There is disagreement on whether Officer Eagleton told Officers Bullard and Bailey the suspects ran north or south. However, at 1:40 a.m. Officers Bullard and Bailey understood that at least two Black male suspects were still on the run. One of the suspects was wearing a black hooded sweatshirt and jeans. Two or three minutes later, Officers Bullard and Bailey observed Smith and defendant, a Black male wearing a dark jacket, sitting in a car facing out of a dead-end street about a quarter of a mile from where police were investigating the burglary. Given the totality of the circumstances, we conclude Officers Bullard and Bailey acted reasonably and lawfully when they detained and questioned defendant.
II
Ineffective Assistance of Counsel
Defendant argues he is entitled to reversal because he was deprived of his constitutional right to effective counsel at trial. Citing eight separate grounds, defendant maintains his trial attorney "pursued a fatally flawed strategy by placing [defendants] character into issue, which opened the door to an incredible amount of highly prejudicial bad character and other crimes evidence being admitted." Defendant insists, "[t]here was no valid, rational basis for defense counsels completely reckless strategy . . . ."
A. What Constitutes Ineffective Assistance:
The law regarding a defendants constitutional right to effective assistance of counsel is well-established. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) "[T]he question whether counsel is constitutionally ineffective comprises two inquiries: (1) Was counsels performance deficient? and (2) was there prejudice? [Citations.] . . . `[I]f a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsels performance was deficient." (People v. Weaver (2001) 26 Cal.4th 876, 961 (Weaver), quoting People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008.) To establish prejudice, "defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, at p. 694 .)
"Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel." (People v. Lucas (1995) 12 Cal.4th 415, 436.) "It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy. [Citation.]" (Strickland, supra, 466 U.S. 668 at p. 689 [80 L.Ed.2d at pp. 694-695], italics added.) At the same time, the reasonableness of counsels decisions on tactics and strategy depends on whether those decisions were informed by adequate investigation. (In re Jones (1996) 13 Cal.4th 552, 565; see also Strickland, supra, at pp. 690-691.) Thus, "[e]ven if counsel has legitimate tactical reasons for introducing no evidence, his performance is still inadequate if evidence supporting a potentially meritorious defense remains unexplored." (In re Cordero (1988) 46 Cal.3d 161, 181.)
B. Instances of Alleged Ineffective Assistance:
1. Defense Counsels Trial Strategy:
Defense counsel explained his trial strategy to the court and prosecutor before trial, stating, "basically, our defense is that [defendant] didnt possess the gun. He had no knowledge there was a gun in the car." The defense planned to produce: (1) the owner of the car who said she put the gun in the car; (2) defendants parole agent who would testify he was doing everything he was supposed to do; and (3) defendants wife who would testify he was working and had a positive attitude since getting out of prison. The broad strategy was to place defendants character in issue by arguing that given defendant knew he had two strikes on his record, he would not have chanced committing a third strike by unlawfully possessing a gun.
On appeal, defendant maintains, "[t]rial counsels basic trial strategy was fundamentally flawed because he intentionally opened the door to an incredible amount of highly prejudicial bad character evidence and other crimes evidence . . . ." Specifically, on direct examination, defendant acknowledged he had been convicted of murder, but the conviction was reversed by the Ninth Circuit Court of Appeals. He also acknowledged his prior membership in the Crips criminal street gang. Defendant testified that the prior felony convictions included voluntary manslaughter, assault with a firearm, and assault on a correctional officer in prison. On cross-examination, the prosecutor elicited more detailed testimony regarding defendants crimes, his conduct while in prison and in jail, and his use of alcohol on parole. Defendant also acknowledged on cross-examination that the prior murder took place in the neighborhood where he was arrested in this case, and that he had two blue bandanas in his possession at the time of his arrest. Defense counsel did not object on grounds of improper impeachment.
2. The Failure to Sanitize the Priors in Count 1:
The court read the charges to the jury at the start of trial. In count one, charging a violation of section 12021, subdivision (a)(1), felon in possession of a firearm, the court specified the prior convictions to include voluntary manslaughter, assault with a firearm and assault on a peace officer.
On appeal, defendant argues defense counsel was ineffective because he failed to move to sanitize the priors, pointing out that although the prosecution is entitled to prove the existence of a felony as an element of section 12021, subdivision (a), a defendant may stipulate to his status as a convicted felon. (People v. Valentine (1986) 42 Cal.3d 170, 173.) Defendant maintains there was "no valid tactical reason for defense counsel not moving to sanitize the priors charged in count 1 because at least one of those was an assault with a firearm, which was similar to the charged offenses here."
3. Failure to Bifurcate the Three Priors:
Defense counsel did not move to bifurcate the three prior serious and violent felony convictions alleged in the information. Nor did defense counsel object when the prosecution called, as its first witness, a deputy clerk who testified in detail about defendants prior convictions.
On appeal, defendant argues there was no tactical reason for trial counsel not to seek bifurcation of the priors pursuant to People v. Calderon (1994) 9 Cal.4th 69, 77-78, or otherwise limit the jurys exposure to "obviously prejudicial" testimony.
4. Failure to Limit Use of Priors for Impeachment:
Defense counsel did not move to exclude or limit the use of defendants three prior serious and violent felony convictions for purposes of impeachment pursuant to Evidence Code section 352. On appeal, defendant argues that, "[e]ven if those priors involved moral turpitude, a reasonably competent defense attorney would have moved to exclude them for impeachment purposes, or limit their number because of their similarity to the three charged offenses here that involved firearms." (See People v. Collins (1986) 42 Cal.3d 378.) Defendant maintains defense counsel was obligated to exclude or limit the prosecutions use of the priors because it was "essential to his defense" that defendant testify he did not knowingly possess the firearm found underneath the passenger seat of the Mustang.
5. Evidence Regarding Defendants Gang Affiliation:
Defense counsel questioned defendant about his affiliation with the Crips during direct examination. The prosecutor repeatedly asked defendant about his gang membership and possession of two blue bandanas during cross-examination.
On appeal, defendant argues "[g]iven that [defendant] was arrested with two blue bandannas [sic] in this case, it was completely reckless for defense counsel to admit evidence regarding [defendants] prior gang membership." He contends that defense counsels failure to object to cross-examination resulted in the creation of "a motive" to convict defendant "because he was a Crip who was possibly in Blood gang territory."
6. Failure to Object to Evidence of Prior Bad Acts:
The prosecutor questioned defendant about his gang membership, his prior murder conviction which was reversed, his write-ups for bad conduct in prison and jail, and his use of alcohol on parole. Defendant asserts, "[a] reasonably competent attorney would have repeatedly objected to the prosecutors improper cross-examination . . . with other crimes evidence that was nothing more than inadmissible criminal propensity evidence."
7. Failure To Object To Improper Closing Argument:
During closing argument, the prosecutor advanced the theme that defendant was a long-time "soldier" of the Crips. He argued, "Bernard Wildee has always been a soldier. From the time he was a 29th Street Crip to the time he was involved in prison gangs, to the moment he sat out on G-Parkway with a Snub Nose revolver, . . . , just down the street or up the street from where he had committed a murder 13 years earlier, again, with a Snub Nose revolver, and he sat there with two blue rags in his pocket."
On appeal, defendant maintains defense counsel was ineffective for failing to object to the closing argument as improper. He asserts the prosecutors argument was "blatant intentional misconduct" because it appealed to the passion and prejudice of the jury and urged the jury to find defendant guilty because of his criminal propensity and bad character.
8. Failure to Request a Limiting Instruction:
Defense counsel did not ask the court for an instruction to the jury limiting its consideration of evidence of prior bad acts, bad character and gang membership. On appeal, defendant argues "[o]nce defense counsel made the mistake of opening the door to the prosecutors highly prejudicial cross-examination of [defendant], defense counsel was obligated to limit the damage that was already done to [defendants] credibility."
C. Defense Counsels Trial Strategy Was Reasonable:
Unlike many cases in which defendant raises ineffective assistance of counsel on appeal, the record in this case provides a clear picture of defense counsels trial strategy. (See, e.g., People v. Wilson (1992) 3 Cal.4th 926, 936-937, and People v. Pope (1979) 23 Cal.3d 412, 425-426.) Here, defense counsel placed defendants serious and extensive criminal record in front of the jury by acknowledging the prior convictions and prior bad acts and then offered evidence of how defendant had changed since his release from prison. The introduction of defendants serious criminal record by the defense served two purposes. One, by acknowledging his record first, it lessened its impact and two, it provided the defense theory that given such a serious record, defendant would not risk reoffense. The conduct raised by defendant as proof of defense counsels recklessness and incompetence was entirely consistent with defense counsels trial strategy. That the jury rejected the defense theory does not mean defendant was denied effective assistance of counsel. Given defendants record and the necessity of defendants testimony denying the "baby gun" statement, his trial attorney had little to work with in this case.
In any event, we need not address the individual claims of ineffective assistance recited by defendant on appeal because defendant suffered no prejudice. (Weaver, supra, 26 Cal.4th at p. 961.) Defendant was lawfully detained and arrested in the early morning hours, after lying to police officers about his name and admitting there was "a baby gun" under his seat in the car. Given this record, it is not reasonably probable the result would have been different if defense counsel had employed another trial strategy. (Strickland, supra, 466 U.S. at p. 687 .)
III
Defendants Romero Motion
Defendant contends the trial court abused its discretion under People v. Superior Court (Romero I) (1996) 13 Cal.4th 497 by declining his invitation to dismiss one of the "strikes" alleged in the information. Defendant maintains the totality of the circumstances, including his personal background, prior drug and alcohol abuse, current conviction of a nonviolent status offense of possessing a firearm, and evidence he had started to change his life, justified striking one of the "strikes." We conclude there was no abuse of discretion.
In Romero I, the Supreme Court ruled that the trial court has power under the Three Strikes law and section 1385 to dismiss a "strike" on its own motion "`in the furtherance of justice." (13 Cal.4th at p. 529.) The Supreme Court explained that the phrase "in furtherance of justice" found in section 1385 requires the trial court to consider both the constitutional rights of the defendant and the interests of society represented by the People in determining whether to exercise discretion to dismiss a strike. (Romero I, supra, at p. 530.)
In People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), the Supreme Court clarified the standard for striking a prior conviction after Romero I: "[T]he court in question must consider 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 schemes 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. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth."
Defendant has the burden to show the trial court abused its discretion under section 1385. (People v. Superior Court (Romero) (2002) 99 Cal.App.4th 1418, 1433-1434 (Romero II).) "`Under that standard [a defendant] who seeks reversal must demonstrate that the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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 courts ruling, even if [it] might have ruled differently in the first instance. [Citation.]" (Id. at p. 1434, quoting People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
The record demonstrates that the court was aware of its duty under Romero I to consider the constitutional rights of the defendant and the interests of society in deciding whether to dismiss a strike. (13 Cal.4th at p. 530.) The court stated its specific findings on the record at the close of the hearing on defendants motion: "[I]n light of the nature and circumstances of his present felony and prior violent felony convictions . . . , to wit, the defendants violence including the manslaughter and assault with firearm convictions constitutes the two strike priors. And then another felony conviction for assault on a peace officer in which he served a prior prison term, his juvenile adjudications involved pointing a knife at the victims throat during a school fight, waving a knife in class, stealing bicycles and mopeds, operating a stolen motorcycle without a license, juvenile camp placement where defendant engaged in fights, racial agitation, instigating a riot against a staff [sic], and being AWOL several times. [¶] The defendants violence has been continuous. He is exactly as the district attorney stated: the type of offender that the proponents of three strikes had in mind in having the initiative adopted by the People and the legislation passed by the Legislature. Therefore, the defendant may not be deemed outside the scheme[s] spirit in whole or in part. As a result, the Court is, in exercising its discretion, . . . not striking either of the two violent strike priors." Given this criminal history, the trial court was justified in rejecting defendants argument he was a changed man. Indeed, he was arrested for being a felon in possession of a firearm just 92 days after he had been released on parole — hardly sufficient time to assess whether he had "learned any of the lessons" he was taught. There was no abuse of discretion.
IV
Cruel and Unusual Punishment
Defendant argues that his "sentence of 25 years to life under the Three Strikes law for a nonviolent offense where no one was injured or killed is grossly disproportionate to the nature of the offense and the offender, and as such constitutes cruel and/or unusual punishment" under our federal and state Constitutions.
We review the question whether a punishment is cruel or unusual as a question of law, but consider the underlying disputed facts in the light most favorable to the judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) In this case we conclude there is no merit in defendants argument.
The principles guiding our analysis of defendants challenge to a sentence of 25 years to life have become well-established, especially in the years since the advent of laws adopted to punish recidivism. This court outlined these principles in People v. Meeks (2004) 123 Cal.App.4th 695 (Meeks).
"Under the separation of powers doctrine, the courts may not encroach lightly in matters that are normally left to the Legislature and must always be aware that one function of the legislative branch of government is to define crimes and describe punishments. [Citation.] The courts examine legislative acts to determine whether the punishment exceeds constitutional limits in individual cases. [Citations.]
"The Eighth Amendment to the United States Constitution proscribes `cruel and unusual punishment and `contains a "narrow proportionality principle" that "applies to noncapital sentences." (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108 . . . ] (lead opn. of OConnor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [115 L.Ed.2d 836 . . . ].) That principle prohibits `"imposition of a sentence that is grossly disproportionate to the severity of the crime" (Ewing v. California, supra, 538 U.S. at p. 21 (lead opn. of OConnor, J.), quoting Rummel v. Estelle (1980) 445 U.S. 263, 271 [63 L.Ed.2d 382, 389, . . . ]), although in a noncapital case, successful proportionality challenges are `"exceedingly rare." (Ibid.)
"A proportionality analysis requires consideration of three objective criteria, which include `(i) the gravity of the offense and the harshness of the penalty; (ii) the sentence imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. (Solem v. Helm (1983) 463 U.S. 277, 292 [77 L.Ed.2d 637, 650 . . . ].) But it is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play. (Harmelin v. Michigan, supra, 501 U.S. at p. 1005 [115 L.Ed.2d at pp. 871-872] (conc. opn. of Kennedy, J.).)
"In Ewing v. California, supra, 538 U.S. 11 , the United States Supreme Courts most recent case involving a claim of cruel and unusual punishment, the high court upheld a three strikes prison term of 25 years to life after the defendant committed grand theft by shoplifting three golf clubs, having been convicted previously of four serious or violent felonies. (Id. at pp. 17-20 [155 L.Ed.2d at pp. 115-117.)
"Justice OConnor stated in her lead opinion that `[r]ecidivism has long been recognized as a legitimate basis for increased punishment. (Ewing v. California, supra, 538 U.S. at p. 25 .) In considering the gravity of the offense, the Supreme Court looked not only to Ewings current felony, but also to his long criminal felony history, stating `[a]ny other approach would fail to accord proper deference to the policy that judgments find expression in the [L]egislatures choice of sanctions. In imposing a three strikes sentence, the States interest is not merely punishing the offense of conviction . . . "[i]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law." (Id. at p. 29 , quoting Rummel v. Estelle, supra, 44 U.S. at p. 276 .)" (Meeks, supra, 123 Cal.App.4th at pp. 707-708.) Applying the proportionality test in light of Ewing, we conclude defendants sentence of 25 years to life for being a felon in possession of a firearm cannot be considered disproportionate to the crime in light of defendants long history of committing serious and violent criminal acts. Although section 12021, subdivision (a)(1) is not listed as a violent felony under section 667.5, subdivision (c), it is difficult to imagine a more serious nonviolent felony — an individual previously convicted of voluntary manslaughter, assault with a deadly weapon, and assault on a peace officer found in possession of a loaded handgun in an area that has a high crime rate, just three months after his release on parole. Defendants sentence survives scrutiny under federal constitutional law.
"The California Constitution prohibits `cruel or unusual punishment. (Cal. Const., art. I, § 17, italics added.) A punishment may violate the California Constitution `although not cruel or unusual in its method, [if] 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].)
"The court in In re Lynch spoke of three `techniques the courts have used to administer this rule, (1) an examination of the `nature of the offense and/or the offender, with particular regard to the degree of danger both present to society (In re Lynch, supra, 8 Cal.3d at p. 425), (2) a comparison of the challenged penalty with the punishments prescribed for more serious offenses in the same jurisdiction (id. at p. 426), 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 (id. at p. 427, italics omitted). As under the federal standard, a defendants history of recidivism, which is part of the nature of the offense and the offender, justifies harsh punishment. [Citations.]" (Meeks, supra, 123 Cal.App.4th at p. 709.)
Citing the first prong of the Lynch analysis, defendant plays up the nonviolent nature of his current offense and "his good faith attempts to change his life" in the 92 days between the time of his release from prison and the time of his arrest. While defendant may argue that possession of a firearm is a nonviolent and de minimus violation that does not justify imposition of an indeterminate life sentence, the State of California takes a more serious view. "As a matter of public policy, the Legislature has made it a crime for convicted felons to possess firearms. (§ 12021, subd. (a)(1).) The purpose of this law is to protect public welfare by precluding the possession of guns by those who are more likely to use them for improper purposes. [Citation.]" (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037.) Defendants history of recidivism is also part of "the nature of the offense and the offender" and justifies his sentence to 25 years to life under the California Constitution. (Meeks, supra, 123 Cal.App.4th at p. 709.)
Defendants argument also fails under the second factor highlighted in Lynch. Defendant is subject to a term of 25 years to life because of his current crime in combination with his recidivism. And because he is a recidivist, his sentence must be compared with sentences imposed on other recidivists. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512; People v. Ayon (1996) 46 Cal.App.4th 385, 400, overruled on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600.) California courts have long upheld enhanced sentences for repeat offenders. (See In re Rosencrantz (1928) 205 Cal. 534, 535-536, 539-540; People v. Cooper (1996) 43 Cal.App.4th 815, 826-827; People v. Weaver (1984) 161 Cal.App.3d 119, 125-126.)
As to the third Lynch factor, it is of little consequence that West Virginia courts have found some life sentences to constitute cruel and unusual punishment. Defendant acknowledges the courts in the cited cases focused on those defendants current felonies. As we explained, whether a particular sentence is disproportionate to the crime must be considered in light of defendants current felony and his recidivism.
Defendant claims his trial counsel was ineffective for failing to raise his constitutional claims at sentencing. Because we conclude there is no merit in defendants constitutional challenge on appeal, his claim of ineffective assistance also fails.
V
Presentence Conduct Credits
Defendant argues and the attorney general concedes that the court erred in calculating his presentence conduct credits. The record shows the court limited defendants conduct credits to 20 percent of actual time under section 2933.1. Section 2933.1 provides for a 15 percent limitation. However, because defendant was not convicted of a violent felony, he was entitled to presentence conduct credits as calculated under section 4019, not section 2933. (§ 2933.1, subd. (c); People v. Thomas (1999) 21 Cal.4th 1122, 1124.)
"Presentence custody credit is calculated under section 4019 `"by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]" [Citation.] [Citation.]" (People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Accordingly, defendant is entitled to a total of 140 days of presentence conduct credit under this formula based on 281 actual days in custody. We shall modify the judgment to correct the courts error.
DISPOSITION
The judgment is modified to award defendant 140 days of presentence conduct credit. As modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and to forward the abstract to the Department of Corrections and Rehabilitation.
We concur:
RAYE, Acting P.J.
ROBIE, J. --------------- Notes: Hereafter, undesignated statutory references are to the Penal Code.