Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC270577
ELIA, J.Appellant challenges his three strikes sentence of 25 years to life for possession of cocaine base. (Health & Saf. Code, § 11350, subd. (b).) He contends that the trial court abused its discretion and that his sentence constitutes cruel and unusual punishment. We affirm.
Background
In December 2002, appellant flagged down a police officer to complain about a fare dispute with a cab driver. The officer noticed that appellant appeared to be under the influence and that he kept putting his hands in his pockets. A search of appellant's person revealed a crack pipe and three baggies of a substance resembling crack cocaine. A urine test was presumptively positive for cocaine.
In April 2003, appellant pleaded guilty to felony possession of cocaine base, misdemeanor being under the influence of cocaine, and misdemeanor possession of drug paraphernalia. (Health & Saf. Code, §§ 11350, subd. (a), 11550, subd. (a), 11364.) Appellant admitted as true five prior strike convictions. (Pen. Code, § 667, subds. (b)-(i).) At the time of plea, the court told appellant, "If your probation is revoked and you're found in violation of probation, you must be sent to state prison for twenty-five years to life. That means your entire lifetime twenty-five years minimum. Maximum is a life prison sentence." Appellant said that he understood that consequence of his plea. The court said, "if you are placed on probation, probation terms and conditions, if you violate the terms and conditions of your probation, . . . you must be sentenced to state prison for twenty-five years to life."
After further advisements, the court asked appellant if anyone had made him any promises as to his sentencing and appellant answered, "Well, felony Prop. 36." The court acknowledged that appellant was "eligible for Proposition 36." The court said, "I want to make sure you understand that if you screw up and are found in violation of probation and your probation is revoked, then you must go to prison for twenty-five years to life. The judge has no choice." The court explained that appellant would be "participating in treatment. . . . There will be things you have to do, things you must do, things you can't do. You'll have to stay in treatment, have to succeed, you'll have to complete it. And if you don't or if you screw up, arrested for any offense, failed to report to probation, your probation can be revoked . . . and you must be sentenced to prison for twenty-five years to life." Defendant told the court that this was "clear" to him.
After appellant entered his plea, defense counsel said "For the record we'd want to reserve the right to bring a [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] motion. If he violates his probation and he's impacted, the twenty-five to life becomes a possibility, we're going to reserve our right to bring a Romero motion."
In May 2003, the court suspended imposition of sentence and placed appellant on probation for one year. One of the conditions of probation was that appellant participate in residential mental health treatment. The court monitored appellant's progress closely, conducting numerous reviews and directing appellant to take his medication and keep his appointments. During the probationary period, appellant tested positive for cocaine four times and walked away from various residential treatment programs four times. In April 2004, the court referred appellant for a mental health determination because, "In open court defendant states the 'medications are not working' and the voices are telling him to kill himself right now." The court continued appellant on probation with residential mental health services. In September 2004, the court summarily revoked probation for appellant's failure to appear.
In December 2004, appellant committed three bank robberies in a case that ultimately came to this court on appeal from his sentence of 75 years to life plus 45 years. All three robberies were committed at Bank of America branches in San Jose. Appellant took over $23,000 by passing notes to tellers or other bank employees, in one case saying that he had a bomb. Appellant wished the bank employees "Merry Christmas" during the robberies.
At appellant's request, this court has taken judicial notice of the record in People v. Woods, H029514.
In November 2005, the prosecutor filed an "anticipatory opposition to defendant's motion to 'strike' allegation[s] pursuant to Penal Code section 1385." In December 2005, appellant filed a request for the dismissal of his strike priors under Penal Code section 1385 "or dismissal of strike priors as cruel and unusual punishment."
Appellant's motion reiterated in large part the motion to dismiss his prior strike convictions that was brought in the trial court before sentencing on the bank robberies. The motion described appellant's childhood. Appellant's father left him, appellant's mother, and appellant's three brothers. Appellant was sexually molested by his uncle. Appellant's mother married a man who was physically abusive to appellant and his brothers. Appellant began running away, drinking alcohol, and smoking marijuana. When he was 15, he was sent to the California Youth Authority for armed robbery, burglary, and forgery.
Appellant's first three strike priors were incurred in 1980 when appellant was residing in a drug treatment program. Appellant entered an Exxon gas station and asked the attendant for change. When the attendant opened the cash drawer, appellant told him he wanted all of the money and showed the attendant a blue steel revolver in his waistband. In the following two weeks, appellant followed the same procedure at a Payless gas station and a Photo Drive Up. Appellant was sentenced to four years in state prison for three counts of robbery.
In 1984, appellant and a friend "after days of binging on alcohol and cocaine" committed a residential burglary in which a handgun, ammunition, and other property were taken. Appellant was sentenced to seven years in state prison. In 1992, appellant was convicted of making criminal threats to a woman he had been seeing socially and sentenced to 16 months in state prison.
In 2001 appellant got divorced, started smoking methamphetamine and crack cocaine, and began hearing voices. He attempted suicide by hanging himself in his mother's backyard and was hospitalized. In 2002, appellant began receiving treatment including medication from a mental health facility. Personnel there diagnosed appellant as "Schizo Effective, Paranoid Type."
In addition to the bank robberies described above, appellant, while on probation, was arrested for and pleaded guilty to theft from an elder and contracting without a license. (Pen. Code, § 368, subd. (d), Bus. & Prof. Code, § 7028, subd. (a).) Appellant's motion appeared to concede that "the court must consider that the recent robbery convictions occurred after this offense and while Mr. Woods was being supervised on probation." The motion argued that an individualized assessment of appellant should take into account "Mr. Woods prospects at rehabilitation, not in the community but in a custodial environment, the state prison system."
At the hearing on appellant's motion to dismiss his strike priors, defense counsel argued that because of the state prison commitment to which appellant was already subject, "we're not talking about a community safety goal in the usual sense . . . . [¶] When we're talking about community safety we're talking about the environment of the California state prison system and how much danger or not Mr. Woods presents when sentenced there by this Court on this case." The prosecutor observed that it was "sad" that appellant had mental health problems that made appellant "do bad things" and acknowledged that "there's also a feeling that when someone has already been sentenced to what is in effect a life sentence, why pile it on for a relatively minor drug case." However, the prosecutor argued that "under a three strike analysis, this is not a close call at all."
The court denied appellant's motion to dismiss his strike convictions. The court said, "I have considered the nature and circumstances of the present felony, the defendant's previous conviction for violent serious felonies, his background character and prospects. I've noted a very extensive criminal history that has continued to the present date including while . . . being supervised by me and was reviewed on a regular [basis]. He has continued to violate the law [and] his most recent conviction is of a serious felony that does pose in my view a threat to the community. [¶] I feel that based on my supervision of the defendant and all the reports I have received over these many, many months from probation and in the fact that he has continued [to] violate the law while on probation and pose a threat to the community that this motion should be denied." The court cited People v. Byrd (2001) 89 Cal.App.4th 1373 to find that the sentence did not constitute cruel and unusual punishment. The court recommended that appellant "receive mental health treatment while he is in custody."
Discussion
Sentencing Discretion
Appellant contends, "The court abused its discretion in piling on 25 years to life, on top of an effective LWOP, for simple drug possession by this mentally ill defendant – an offense even less serious than the elder fraud case for which relief was granted." Appellant argues, "The court's refusal to exercise discretion to mitigate the third strike term for this drug possession offense is absurd under the circumstances of this case."
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, our Supreme Court articulated guidelines for the exercise of a court's discretion to dismiss strike priors. In People v. Williams (1998) 17 Cal.4th 148, our Supreme Court summarized the "deferential" standard of review of a Romero ruling for abuse of discretion as "whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (Id. at p. 162.) The duty of the court in ruling on whether to strike a strike prior is to "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 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." (Id. at p. 161.)
On appeal, " 'The 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.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) "Concomitantly, '[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." [Citations.]' " (Id. at p. 978.)
Referring to the bank robberies and the possession of cocaine base, appellant argues, "All of these strange offenses were committed by an older, de-escalating offender after very real mental health problems, compounded by life-long substance abuse problems, erupted in his life." He argues, "Appellant may have committed robberies while on drug probation with this judge, but he has already been punished extravagantly for them. The court here erred in failing to recognize the relative nonseriousness of this strange drug offense." When searched, appellant had three baggies of "a crystalline substance resembling crack cocaine." One of the three baggies was weighed and found to contain 0.14 grams of cocaine base. The prosecutor candidly acknowledged in his moving papers that "The first prong of the Williams analysis is the weakest for the People. Defendant's current crimes are nonviolent and involve possession of cocaine for personal use."
By the standard of review on appeal, we hold the court committed no abuse of discretion in declining to strike appellant's five strike priors. Nothing in appellant's background, character, or prospects, sets him outside the spirit of the three strikes law to indicate that he should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. Having had such frequent contact with appellant during the probationary period, and receiving reports on his progress, the trial court was well aware of appellant's mental health struggles and drug abuse and was in an unusually well-informed position to make an individualized determination about appellant. The record shows the court gave weight to the nature and circumstances of appellant's present offenses, his prior serious felonies, and the "particulars of his background, character, and prospects." (People v. Williams, supra, 17 Cal.4th at p. 161.) Because the trial court did not abuse its discretion, appellant was not denied due process.
We note that appellant committed the bank robberies after the court had revoked his probation in this case. Thus, consideration of those offenses in selecting the sentence was prohibited under rule 4.435, subdivision (b), of the California Rules of Court. (People v. Harris (1990) 226 Cal .App.3d 141.) However, both trial counsel and appellate counsel have asked that the sentence imposed for the robberies be considered as a reason to dismiss the strike priors in this case. Even assuming that the trial court could not consider the commission of the bank robberies, given the court's clear indication at the time appellant entered his plea that the court would impose the three strikes sentence if appellant violated probation, there is no reasonable probability that the court would impose a lesser sentence on remand.
Cruel and Unusual Punishment
Appellant contends, "Imposition of a term of 25 years to life for pathetic possession of small amount of cocaine on appellant, a middle-aged schizophrenic seeking help from the police constitutes cruel and unusual punishment under both the California and United States Constitutions."
A punishment is excessive under the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment may violate article I, section 17 of the California Constitution 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.) Under Lynch, the proportionality of any given punishment is measured against the nature of the offense and the offender, against punishments for more serious crimes in the same jurisdiction, and against punishments for the same offense in foreign jurisdictions.
On appeal, we evaluate the question of cruel and/or unusual punishment by resolving factual disputes in favor of the judgment, and exercising our independent judgment on the issue of constitutionality. (People v. Meeks (2004) 123 Cal.App.4th 695, 706-707.) A "defendant must overcome a 'considerable burden' in convincing us his sentence was disproportionate to his level of culpability." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1197.) Successful challenges to proportionality are an "exquisite rarity." (Id. at p. 1196.)
As to the first Lynch prong, appellant incorporates by reference his arguments supporting the contention that the trial court abused its discretion in refusing to dismiss his strike priors and states, "With or without reference to the LWOP appellant is already serving, that discussion indeed demonstrates the life term imposed here is grossly disproportionate to appellant's offenses, past and present." We disagree. Appellant's sentence cannot be viewed just as punishment for the instant offense; it was punishment for committing this felony and doing so as a recidivist offender. In other words, he "was punished not just for his current offense but for his recidivism. Recidivism justifies the imposition of longer sentences for subsequent offenses." (People v. Cooper (1996) 43 Cal.App.4th 815, 825.)
Appellant relies on Banyard v. Duncan (C.D. Cal. 2004) 342 F.Supp.2d 865. In Banyard, the defendant was arrested for possessing a fraction of a gram of rock cocaine, which he had just purchased and which was enough only for a single use. The defendant had two prior strike convictions, for robbery and assault with a deadly weapon. The court found a 25-year-to-life sentence to be grossly disproportionate to the predicate offense. (Id. at pp. 867-868, 878.) Additionally, the Banyard court reviewed the record and determined that both of the crimes that had been deemed prior strikes were not serious or violent felonies. (Id. at pp. 875-876, 877-878.) Here, appellant has repeatedly reoffended, performed poorly on parole, and failed on closely-monitored probation. Appellant's apparent mental illness and drug problems do not compel the conclusion that his sentence is cruel or unusual under the California Constitution. His strike priors were committed either to get money for drugs or while under the influence of drugs. Thus, the offense for which appellant was sentenced represents a "continuation of a specific pattern of criminal behavior for which the offender had been previously punished at least two times before." (Banyard v. Duncan, supra, 342 F.Supp.2d at p. 874.)
Appellant argues that the trial court's citation to People v. Byrd, supra, is in apposite. In Byrd, the court held that a sentence of 444 years to life plus 115 years for 12 armed robberies did not violate the constitutional ban on cruel and unusual punishment. Appellant is correct that Byrd did not involve a claim of abuse of discretion in declining to dismiss strike priors.
As to the second Lynch prong, appellant argues, "This conduct is being punished more severely than manslaughter, rape, kidnapping, and second-degree murder are. (Pen. Code, §§ 193, 208, 261, 187-190.) Appellant realizes that these comparisons do not account for his recidivism. But the totality of offenses here still do not equal in severity a murder, a manslaughter, or a rape committed with a weapon, none of which appellant ever committed." However, appellant has been sentenced to the challenged term not just because he possessed cocaine base. Rather, he was so sentenced because he has committed this felony and has five prior strike convictions and three serious felony convictions.
As for the third Lynch prong, appellant observes, "there are few or no states . . . with a recidivist punishment scheme as harsh as California's as applied here." Although California's recidivist scheme is one of the most extreme in the nation, this result does "not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. . . . Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
Appellant's sentence is not so disproportionate to his crime that it shocks the conscience and offends fundamental notions of human dignity.
Disposition
The judgment is affirmed.
WE CONCUR:
RUSHING, P. J., PREMO, J.