Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. DF008873A, Robert S. Tafoya, Judge.
Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Dawson, J.
Appellant Randy Williams contends that the trial court (1) abused its discretion when it declined to dismiss one of his prior strike convictions, and (2) the 25 years to life prison sentence under the three strikes law is sufficiently disproportionate to the crime committed so as to be in violation of the Eighth Amendment to the United States Constitution. We disagree and affirm.
Because appellant pled no contest, the facts are taken from the probation officer’s report.
On May 23, 2008, during an ongoing investigation at the Kern Valley State Prison, an investigator saw Dejon Brown, an inmate who was then in the prison’s visiting room, remove what appeared to be a narcotics bindle from a potato chip bag and swallow it. Officers confronted Brown and found additional bindles in the bag. Ana Hernandez, the person who was visiting Brown, was arrested.
Brown admitted swallowing 10 bindles, admitted possessing the remaining bindles in the potato chip bag, and acknowledged that Hernandez had furnished him with the narcotics while visiting. The narcotics obtained from Brown consisted of 12.4 grams of methamphetamine and 12.56 grams of marijuana.
Hernandez admitted her involvement in the conspiracy, and implicated Fiamma Williams as the facilitator of the narcotics transactions. According to Hernandez, Williams provided her with the narcotics bindles which Hernandez then smuggled into the prison. Williams was then arrested and stated that her husband, appellant, had instructed her to give the bindles to Hernandez.
On June 23, 2008, pursuant to a negotiated plea, appellant pled no contest to one count of conspiracy to provide a controlled substance to a prisoner (Pen. Code, §§ 4573.9, 182, subd. (a)(1)) and one count of bringing a controlled substance into a prison (§ 4573). He also admitted two prior strike convictions and agreed to a possible maximum prison term of 25 years to life. When he entered the plea, he did so on the condition that he could later ask that the trial court dismiss one of his strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
All further statutory references are to the Penal Code unless otherwise stated.
On May 6, 2010, after numerous continuances of the sentencing hearing, the trial court denied appellant’s motion to withdraw his plea and his motion to strike one of his prior strike convictions under section 1385 and Romero. That day the court sentenced appellant to a prison term of 25 years to life on each of the two convictions, but stayed one of the terms pursuant to section 654.
Discussion
1. Romero Motion
Appellant argues that the trial court abused its discretion by refusing to dismiss his 1991 prior strike convictions pursuant to section 1385 and Romero. We disagree.
A trial court’s decision not to dismiss or strike a prior serious and/or violent conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).)
“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.’”’ [Citation.] 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.” (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 and People v. Preyer (1985) 164 Cal.App.3d 568, 573.)
The California Supreme Court explained:
“In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Carmony, supra, 33 Cal.4th at p. 378, citing People v. Langevin (1984) 155 Cal.App.3d 520, 524 and People v. Gillispie (1997) 60 Cal.App.4th 429, 434.)
Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
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.” (Williams, supra, 17 Cal.4th at p. 161.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his or her conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Appellant contends the trial court should have granted his request to strike one of his two strike priors (1) because his first strike was committed nearly 20 years earlier in 1991, when he was a young man in his early twenties; and (2) because of the nature of the current offense, which he describes as minimal in “the scheme of possible criminal activity.”
What appellant fails to point out is that he already had a substantial criminal history prior to his 1991 conviction for robbery (§ 211): he had a 1986 conviction for car theft (Veh. Code, § 10851); four month later, another conviction for car theft (ibid.); two months later, a conviction for furnishing a substance falsely represented to be a controlled substance (Health & Saf. Code, § 11355); a year later, in 1988, a conviction for grand theft (§ 487); and two years after that, in 1990, another conviction for furnishing a substance falsely represented to be a controlled substance (Health & Saf. Code, § 11355). After his 1991 first strike conviction, he had a vehicle code violation (Veh. Code, § 12500), which the trial court stated “[wa]sn’t worth considering”; a second strike conviction in 1994 for being a felon in possession of a weapon (§ 12021, subd. (a)(1)); and while he was in state prison, a conviction for possession of a controlled substance in prison (§ 4573.8). This was followed by four parole violations before he received another strike conviction for robbery (§ 211) in March of 2004, for which he was sentenced to 26 years 4 months. Appellant’s criminal history is, as described by the trial court, “a pattern of conduct that goes back at least 20 years.”
Appellant’s claim that his current offense was relatively minor fails to acknowledge that the purpose of statutes that prohibit bringing contraband into correctional facilities is to deter the presence of illicit drugs in custodial institutions to ensure the orderly administration and security of such institutions. (People v. Harris (2006) 145 Cal.App.4th 1456, 1461.) In addition, as noted by the trial court, appellant’s wife, in her interview with investigators, stated that the “whole movement of drugs was instigated by [appellant]” and that it had been going on “for years.”
We cannot conclude the trial court abused its discretion in declining to strike appellant’s prior conviction. The relevant considerations support the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion, used improper reasons, or failed to consider and balance the relevant factors, including appellant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams.
2. Disproportionate Sentence
Appellant also claims that his current sentence is “for all intents and purposes, a death sentence” and is therefore disproportionate to the crime committed so as to be in violation of the Eighth Amendment to the United States Constitution. As reasoned by appellant, since he was convicted in 2004 of a robbery and sentenced to “over 26 years, ” he would be 62 years old when he completes this sentence. The current 25 years to life sentence, ordered to be served consecutively to the 26-year term, would mean appellant would be over 80 when he has his first chance of parole. In essence, he contends that imposition of a 25-year-to-life sentence for the nonviolent and nonserious offenses of conspiracy to provide a controlled substance to a prisoner violates the federal constitutional provision against cruel and unusual punishment. Assuming, without deciding, that appellant preserved this issue for review, we disagree.
The United States Supreme Court has upheld three strikes sentencing, even when applied, as here, to a person convicted of a nonviolent third strike. In Ewing v. California (2003) 538 U.S. 11, the defendant had four strike prior convictions, plus a number of non-strike priors. (Id. at pp. 18-19.) While still on parole, he stole three golf clubs worth a total of $1,200. (Id. at pp. 17-18.) As a result, he was sentenced under California’s three strikes law to 25 years to life. (Id. at p. 20.)
A plurality of three justices held that this did not constitute cruel and unusual punishment. They explained:
“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 Eighth Amendment prohibits California from making that choice.” (Ewing v. California, supra, 538 U.S. at p. 25 (plur. opn. of O’Connor, J.).)
They noted: “In weighing the gravity of Ewing’s offense, we must place on the scales not only his current felony, but also his long history of felony recidivism.” (Id. at p. 29.) The plurality concluded: “Ewing’s sentence is justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record.” (Id. at pp. 29-30.)
Justices Scalia and Thomas, concurring in the judgment, would have held that the Eighth Amendment does not require proportionality at all. (Ewing v. California, supra, 538 U.S. at p. 31 (conc. opn. of Scalia, J.); id. at p. 32 (conc. opn. of Thomas, J.).) Accordingly, a majority of the Supreme Court not only upheld Ewing’s sentence, but would have upheld a three strikes sentence in all but an “‘exceedingly rare’” case. (Id. at p. 21; see also Lockyer v. Andrade (2003) 538 U.S. 63, 73-76.)
This is not such a case. As we held earlier in this opinion, appellant falls squarely within both the letter and spirit of the three strikes law. He will be serving the bulk of the remainder of his life in prison because he has a history of criminal activity and has chosen to continue to participate in criminal activity. Ewing teaches us that the Eighth Amendment does not prohibit California from choosing to “incapacitat[e]” such a recidivist offender. (Ewing v. California, supra, 538 U.S. at p. 25 (plur. opn. of O’Connor, J.).) We therefore conclude that appellant’s sentence is not cruel and unusual punishment under the federal Constitution.
Disposition
The judgment is affirmed.