Opinion
H035571
08-19-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL VILLARREAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC597317)
Defendant Robert Daniel Villarreal was convicted by jury trial of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). The jury also found that defendant had five prior serious or violent felonies that qualified as strikes under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12) and had served five prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to state prison for 30 years to life. On appeal, this court found that there was insufficient evidence to support one of the prior strike convictions and reversed the judgment. On remand, the trial court resentenced defendant to state prison for 30 years to life. Defendant again appeals. He contends: the trial court abused its discretion in denying his Romero motion to dismiss three of his prior strike convictions; and his sentence violates federal and state constitutional bans against cruel and/or unusual punishment. We reject his contentions and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
I. Factual and Procedural Background
This court has taken judicial notice of the appellate record in People v. Villarreal (Dec. 16, 2008, H030465) [nonpub. opn.]. (Evid. Code, § 452.)
In March 2005, defendant took a tool box and several tools from a shed belonging to Rosa Balderas and her husband Bernabe. Rosa Balderas had previously dated defendant's brother and they had a daughter Jessie. Defendant did not ask permission to take the tools, which were worth between $500 and $600, and he did not return them prior to his arrest on a parole violation 16 days later. Defendant's girlfriend saw him sell the items to another individual.
Defendant testified that he had met Jessie when she was a baby and had been to the Balderas residence many times and had helped with work around the house. After noticing that there was garbage in front of the Balderas residence, defendant asked someone living in a back cottage if he would ask Rosa Balderas if she wanted help with work around the house. When he returned two days later, no one was home. While he was waiting for someone to return, he decided to borrow the tools so he could fix his girlfriend's car. Though Bernabe Balderas saw defendant leaving the premises with the toolbox, he did not realize that it was his toolbox. Defendant did not tell him that he intended to borrow the tools. Defendant also denied selling the tools.
Defendant admitted his prior offenses. In 1976, defendant was convicted of first degree burglary and robbery and served a prison sentence. In 1982, defendant was convicted of robbery and sentenced to five years in prison. In a separate case that same year, he was convicted of burglary and sentenced to a concurrent term of five years in prison. In 1987, defendant was convicted of assault with a deadly weapon with an allegation of personally inflicting great bodily injury and sentenced to eight years in prison. In 1992, defendant was convicted of grand theft and sentenced to four years in prison. In 1994, defendant was convicted of two felony drug possession offenses and sentenced to eight years in prison. Defendant admitted that he spent time in custody for various parole violations and that he had only been out of custody for 22 months in the 19 years prior to trial.
II. Discussion
A. Romero Motion
Defendant contends that the trial court abused its discretion when it denied his motion to strike all but one of his prior strike convictions.
1. Background
In June 2006, defendant filed a Romero motion asking the trial court to dismiss all but one of his prior strike convictions pursuant to section 1385. He argued that his current offense was minor, his prior offenses had occurred 24 and 30 years ago, his last violent offense occurred over 21 years ago, his parents and grandmother abused him, he began living on the streets when he was 15 years old, he was also sexually abused, he suffered from paranoid schizophrenia, psychosis, and depression, his long-standing alcohol and drug addiction motivated his prior offenses, and he was of advancing age.
Following a hearing, the trial court denied the motion, stating: "Mr. Villarreal, I believe what [defense counsel] has set forth in his papers about your upbringing, and it was clearly horrific, and it didn't give you much of a chance to go in a different direction than what your parents and siblings had done, and that's tragic, and there's nothing I can do to change that, but at some point in your life, I do believe you had the ability to change it yourself and decide that you would not let your past dictate your future, and I don't think you have taken advantage of that option. [¶] I also think that the jury rejected the story that you shared with the probation officer by finding you guilty, and after looking at everything that has been submitted to me, even though the current offense is not a serious offense, I don't think that you are going to be able to turn your life around. I do think you present a danger to the public, and I don't believe that I can present appropriate reason[s] to grant the Romero motion in this case, so it will be denied."
On remand, defendant renewed his Romero motion in April 2010 and requested that the trial court dismiss three of his four prior strike convictions. He also requested that the renewed motion be considered together with his original Romero motion. Defendant indicated that his mental health remained the same and that his physical health had deteriorated. He suffered from hepatitis C, degenerative arthritis in his shoulder and spine, tuberculosis, and coccidiodomycosis, which was caused by inhalation of certain airborne fungal spores while in prison. Defendant also noted that he was currently 55 years old, his last act of violence occurred when he was in his twenties, his four prior strike convictions occurred 25 years ago, and his current offense was minor.
The prosecutor filed supplemental opposition to the motion, requesting that the trial court not dismiss any prior strike convictions. He summarized the facts relating to defendant's prior strike convictions. In November 1985, defendant and a friend broke down the door of his girlfriend's residence, and when her mother confronted him, he pulled her down the stairs while his partner held a knife to her throat. Defendant, who was armed with a knife, grabbed his girlfriend. When she escaped to another room, defendant kicked in the door. He and his partner then tried to carry her away, but the police arrived. The girlfriend's mother was hospitalized for 10 days. In April 1981, defendant handed a note to a store clerk, displayed his gun, and demanded money. In July 1976, defendant confronted a store cashier with a gun, told him to lie on the floor, took money from the register, and rifled through the victim's pockets. After defendant left the store, he broke into a residence and stole some clothes. Defendant was also convicted of four other felonies between 1981 and 1994. In addition to the eight felony convictions, defendant had been convicted of 22 misdemeanor offenses, had been in custody most of his adult life, had never attempted to get a GED, and had no employment history. The prosecutor also argued that defendant's psychiatric and health problems made it unlikely that he would be a working and productive member of society.
At the resentencing hearing, the trial court denied the Romero motion, and sentenced defendant to 30 years to life in state prison.
2. Standard of Review
In ruling on a motion to strike a prior serious and/or violent felony conviction, the trial court must consider whether doing so would be in the "furtherance of justice," pursuant to section 1385, subdivision (a). (People v. Williams (1998) 17 Cal.4th 148, 159 (Williams).) Williams stressed that considerations of justice include not only consideration of the defendant's constitutional rights, but also society's interest. (Ibid.) The " 'furtherance of justice' " standard requires that the trial court "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 presently been convicted of one or more serious felonies and/or violent felonies." (Id. at p. 161.)
The "trial court's failure to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 should be reviewed for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).)Because there is "a strong presumption" that the sentence required under the Three Strikes law "is both rational and proper" (Carmony, at p. 378), a trial court abuses its discretion in failing to dismiss a prior strike conviction only if "its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) "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 court's ruling, even if we might have ruled differently in the first instance. [Citation.]" (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The defendant carries the burden " ' "to clearly show that the sentencing decision was irrational or arbitrary." ' " (Carmony, at p. 376, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
3. Analysis
Defendant argues that the trial court did not understand the scope of its discretion to dismiss his strike convictions. He claims that the trial court's "reference to [him] as a 'poster boy for the three strikes law' strongly indicates that [it] believed that the only legally authorized sentence in this case was a life sentence." Thus, he claims that "[t]o the extent the court felt that the law compelled [its] decision to impose a life sentence," the trial court erred. We disagree with defendant's characterization of the record.
Here, after listening to argument, the trial court gave a lengthy statement prior to issuing its ruling. The trial court first noted that it had "spent a fair amount of time reviewing everything that ha[d] been submitted." Relying on Williams, supra, 17 Cal.4th 148, the trial court then stated that it "must look to the spirit as well as the letter of the law in determining whether to strike a strike. And it must therefore determine whether the defendant, in light of the particulars of his background, character, and prospects is outside the spirit of the Three Strikes law in any part, and thus should not be treated as though he had not been previously convicted of those serious or violent felonies." The trial court also summarized the facts of Williams: the prior convictions were felony driving under the influence; the prior convictions had occurred 13 years prior to the current offense; the defendant did not refrain from criminal activity during that time span; the defendant was unemployed; the defendant did not address his substance abuse problems; and the defendant was often in prison or jail. After noting that the facts in Williams were similar to those in the present case and that defendant had also testified falsely during his trial, the trial court provided a detailed summary of defendant's 36-year criminal history. The trial court continued its comments, stating: "It appears in looking at his criminal record that he starts to commit a crime almost as soon as he is released on parole. And he does not quit until he is returned to state prison, whether by a parole violation or a new sentence. I am not being flippant when I say that it would not be an exaggeration that Mr. Villarreal could be the poster boy for the Three Strikes law. He has been doing a life sentence on the installment plan and he has left numerous victims in his way." The trial court noted again that it had reviewed the medical records and other information submitted by the defense, and concluded: "The Three Strikes law was devised for the revolving door criminal, career criminals, and was expressly intended to insure longer prison sentences for those who commit a felony, as long as they have been previously convicted of at least other violent or serious felonies. [¶] In short, I can't find anything in Mr. Villarreal's history, prospects, character that would suggest to me that he is outside the spirit of the Three Strikes law. I think that he is exactly the kind of defendant that the Three Strikes law was meant to address. And I will not strike any of the strikes."
When read in context, the trial court's reference to defendant as "the poster boy for the Three Strikes law" was a comment on his extensive criminal history. The trial court correctly stated the criteria for its exercise of discretion in a Three Strikes case, that is, it must consider the "nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (Williams, supra, 17 Cal.4th at p. 161.) Since the trial court's recitation of various factors indicate that it considered those factors, we reject defendant's contention that the trial court believed that it had no discretion to grant his Romero motion.
Defendant also argues that the trial court's reference to him as a "danger to the public" was not supported by the record. However, we note that the trial court made this comment at the first Romero hearing in 2006. At issue in the present appeal is whether the trial court abused its discretion in denying the Romero motion in 2010. Moreover, even assuming that there was error, a second hearing was held in 2010.
Defendant next contends that the trial court abused its discretion because it improperly focused on his criminal history without considering the seriousness of those crimes or the other relevant factors presented at the hearing. There is no merit to this contention.
Here, the trial court stated that it had reviewed the documents presented by the parties. In summarizing defendant's record, the trial court specifically noted the nature of the offenses, thereby recognizing the seriousness of these offenses. The trial court stated: "He had apparently a juvenile history that was significant because he was sent to CYA and he received a dishonorable discharge from CYA and starting in 1974 as an adult, he had misdemeanor Vehicle Code violations and then a petty theft and then a 459, reduced to a 496 and a 415. Those were all in 1974. [¶] In '75, he had a Business and Professions Code misdemeanor; in '76, hit and run, and failure to appear, and another Vehicle Code violation that at the moment I can't think what it means. And a failure to appear. [¶] And then, December 2nd, 1976 is when he committed a 211 armed and a first degree burglary. So his first two strikes. And those were significant cases. I believe that was the one, the 211, where he actually held a gun to the store owner's head and then he broke into a home while he was on the run. [¶] He got out, was out in 1980 and committed a D.U.I., failure to appear. In 1980 he also had other Vehicle Code violations. And in 1981 he had a 459, second degree, a 211, so that's another strike. And in that case he also was armed. And he received a five-year state prison sentence on the 211, and a three year concurrent on the 459. That was in '82. He's out in '84. [¶] And it looks like there was a parole violation in '84. There was a parole violation in '85. Two or three of them. And then in '85, he committed the terrible, horrific, as Mr. Smith said, 245. And at that time other counts were charged, but that's apparently what he pled to. And he got eight years in 1987 for a case that had been filed in '85. He was out by '91.
In 1976, defendant also had a conviction for failure to report an accident (Veh. Code, § 20002).
He committed another felony almost immediately, a 484/487, and that time he got a six-year sentence, but he was out in '93; a public intoxication in '95. He had an 11350 and 11377 that was filed as a Three Strikes case, but the D.A. dismissed one of the strikes at that time. He got eight years in prison on that. He was released in '[0]1. He was out on parole. [¶] As I read his record, he was released on August the 18th, and on August the 21st there was a violation of parole and a 484; and then there was a 484 in 2003, 11377, 11550; another parole violation in '03; and 11550 in '04; a 148.9, a 647(F) in '05. So it appears he had four parole violations during this period. [¶] He was discharged from parole on December 1st, 2005 after he had been arrested in this case for burglary." The trial court also commented on the similarities between defendant and the defendant in Williams, that is, some individuals would not consider the current offenses serious within the Three Strikes scheme, both defendants were unemployed, and neither defendant had addressed his substance abuse problem. In addition, the trial court acknowledged defendant's medical problems. Thus, the record refutes defendant's claim that the trial court did not consider all relevant factors before denying his Romero motion.
Defendant argues that the most relevant factor was the nature of the current offense. However, while this factor is relevant, it is not dispositive. "By its very terms, any felony triggers a longer sentence under the Three Strikes law as long as the defendant has sustained at least one strike. Since the express intent of the Three Strikes law is 'to ensure longer prison sentences' for any defendant who has a qualifying strike and subsequently commits 'a felony,' the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law. [Citation.] To conclude otherwise would rewrite the statute to only trigger a longer prison sentence for those defendants who commit a violent or threatening felony after having committed at least one strike. That is not the law's letter or spirit." (People v. Strong (2001) 87 Cal.App.4th 328, 344, fns. omitted.)
Noting that he committed his most recent prior strike in 1985, defendant also focuses on the remoteness of his prior strike convictions. However, the trial court abuses its discretion in dismissing a prior strike conviction on the ground that it is remote when "the defendant has not led a 'legally blameless life' " after the prior conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Here, at the time of trial in this case, defendant had been out of custody for only 22 months in the last 19 years. Clearly, his life cannot be considered "legally blameless" since he committed his last prior strike.
People v. Bishop (1997) 56 Cal.App.4th 1245 does not compel a different result. In Bishop, the defendant was convicted of petty theft with a prior conviction and was found to have three prior strike convictions. (Id. at p. 1249.) The trial court dismissed two of his prior strike convictions and sentenced him to state prison for 12 years, noting that his strikes were 17 to 20 years old, his current offense was nonviolent, and the 12-year penalty would keep the 50-year-old defendant in prison for a significant period of time. (Id. at pp. 1248-1249.) The Court of Appeal held that the trial court had not abused its discretion in dismissing the prior strike convictions and affirmed. (Id. at p. 1251.) In contrast to Bishop, the issue in the present case is whether the trial court abused its discretion in declining to dismiss defendant's prior strike convictions.
In sum, we conclude that the trial court properly understood the scope of its discretion, considered all relevant factors, and did not abuse its discretion in concluding that defendant fell within the spirit of the Three Strikes law.
B. Cruel and/or Unusual Punishment
Defendant next contends that his sentence of 30 years to life amounts to cruel and/or unusual punishment under our federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
We first consider the Attorney General's contention that defendant has forfeited his claim of cruel and/or unusual punishment. Citing Williams, supra, 17 Cal.4th at pp. 160-161, defendant argues that his Romero motion "inherently state[d] a constitutional challenge to the severity of the sentence." Since defendant's Romero motion developed the facts relevant to this issue and the prosecutor addressed the issue in his supplemental briefing prior to the renewed Romero hearing, we will address the merits of defendant's claim.
1. The Federal Constitution
The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." The Eighth Amendment prohibits imposition of a sentence that is " 'grossly disproportionate' " to the severity of the offense. (Ewing v. California (2003) 538 U.S. 11, 20-21 (Ewing).)
Defendant's federal challenge to his sentence cannot prevail in light of Ewing, supra, 538 U.S. 11. In Ewing, the 38-year-old defendant took three golf clubs from a pro shop and was sentenced to 25 years to life under California's Three Strikes law. (Ewing, at pp. 17-18.) The defendant had a 16-year criminal history, including prior convictions for burglary, theft, battery, robbery, possession of a firearm, and other minor offenses, and had been committed to state prison only once. (Id. at p. 18.) His current offense for grand theft occurred 10 months after his release on parole following six years in state prison. (Ibid.) The United States Supreme Court issued a 5-4 decision, which rejected the claim that a life sentence for a current offense of grand theft violated the Eighth Amendment. Three justices concluded that the defendant's sentence was not grossly disproportionate under the Eighth Amendment. (Ewing, at pp. 30-31.) Two justices joined the majority on the basis that the Eighth Amendment's prohibition against cruel and unusual punishment did not include a ban on grossly disproportionate sentences in noncapital cases. (Ewing, at pp. 31-32, (conc. opns. of Scalia, J. and Thomas, J.).)
The high court's analysis of the proportionality of Ewing's punishment is applicable to the present case. "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. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the 'triggering' offense: '[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.' " (Ewing, supra, 538 U.S. at p. 29.)
"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. Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior 'strikes' were serious felonies including robbery and three residential burglaries. To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California 'was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.' " (Ewing, supra, 538 U.S. at pp. 29-30, fns. omitted.)
Here, the record establishes that the justification for incapacitating defendant is equal to the justification for incapacitating Ewing. Ewing was 38 years old and had a 16-year criminal history. Defendant was over 50 years old and had a 31-year criminal history when he committed his current offense. Ewing had only been to prison once, but defendant maintained his criminal behavior despite having served five separate prison terms. Ewing had three prior residential burglary convictions, one prior robbery conviction, and two prior convictions which involved weapons, as well as nine misdemeanor convictions. (Ewing, supra, 538 U.S. at pp. 18-19.) Defendant had a prior residential burglary conviction, two prior robbery convictions which involved weapons, and an assault with a deadly weapon conviction with a great bodily injury enhancement, four other felony convictions, and 22 misdemeanor convictions. That Ewing's sentence was not found to be grossly disproportionate under the Eighth Amendment necessarily means that defendant's sentence is not grossly disproportionate under the Eighth Amendment.
Defendant argues that Ewing is distinguishable, and thus his sentence is more severe than the sentence in Ewing. In contrast to the defendant in Ewing, defendant points out that he will not be eligible for parole until he is 80 years old, and that he had not committed a serious felony for 20 years. However, these distinctions are not favorable to defendant because they illustrate that his prior criminal history is far more extensive than the defendant's in Ewing. Here, despite serving five prior prison terms, defendant has committed significantly more crimes. Accordingly, we find no merit to defendant's argument.
Defendant's reliance on People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II) is misplaced. In Carmony II, though the defendant had registered as a sex offender one month prior to his birthday, he failed to register with the same information within five working days of his birthday as required by law. (Id. at p. 1071.) The defendant's parole officer also knew that the defendant's registration information had not changed and arrested the defendant at the address where he was registered. (Ibid.) The defendant was sentenced to 26 years to life in prison under the Three Strikes law after he pleaded guilty to failure to register as a sex offender within five days of his birthday, and admitted that he had suffered three prior serious or violent felony convictions and had served one prior prison term. (Carmony II, at pp. 1071-1072.) Carmony II held that "[i]f the constitutional prohibition [against cruel and/or unusual punishment] is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law." (Id. at p. 1072.) Here, defendant's current offense of burglary was far more serious than the offense in Carmony II.
Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755 (Ramirez) also does not assist defendant. In Ramirez, the defendant stole a $199 VCR from a store. (Id. at p. 756.) The jury found the defendant guilty of petty theft with a prior conviction, and found true the two prior strike conviction allegations. (Ibid.) The trial court sentenced defendant, who had never been to prison before, to 25 years to life. (Ibid.) Ramirez held that the sentence violated the Eighth Amendment. (Ramirez, at p. 757.)
We first note that though we may consider the decisions of lower federal courts for their persuasive effect, they are not binding on this court. (People v. Bradford (1997) 15 Cal.4th 1229, 1305.) However, even if we agreed with the analysis in Ramirez, the case is distinguishable. Here, defendant's prior strike convictions are more numerous than those of the defendant in Ramirez. Moreover, unlike the defendant in Ramirez, defendant has served several prison terms for various offenses and parole violations. Thus, defendant's criminal history demonstrates that he is " 'incapable of conforming to the norms of society as established by its criminal law.' " (Ewing, supra, 538 U.S. at p. 29.)
2. The California Constitution
Article I, section 17 of the California Constitution states that "[c]ruel or unusual punishment may not be inflicted or excessive fines imposed." This constitutional proscription is violated when a penalty 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 (Lynch), superseded by statute on another ground as stated in People v. West (1999) 70 Cal.App.4th 248, 256.) "Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty 'out of all proportion to the offense' [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment." (Id. at pp. 423-424.) "Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]" (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) A defendant bears the burden of establishing that the punishment prescribed for his offense is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572.)
The California Supreme Court has devised three "techniques" for assessing whether punishment is cruel or unusual. (Lynch, supra, 8 Cal.3d at pp. 425-427.) Courts should consider "the nature of the offense and/or the offender" (id. at p. 425), compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses (id. at p. 426), and compare the punishment to other punishments imposed by other jurisdictions for the same offense. (Id. at p. 427.)
We first consider the nature of the offense and the offender. Regarding the offense, we evaluate "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon), abrogated by statute on a different point as explained in People v. Chun (2009) 45 Cal.4th 1172, 1186.) We also focus on the particular defendant's "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
Here, though defendant's current offense does not qualify as a serious or violent felony, the circumstances surrounding its commission are not favorable to him. He was convicted of burglarizing the tool shed of his brother's former girlfriend, and he had cased the place prior to committing the burglary. When he committed the burglary, he was on parole. Moreover, he refused to accept responsibility for his actions until years after his conviction. Regarding defendant's personal characteristics, he experienced substantial neglect and abuse during his childhood, is now 55 years old, and suffers from significant mental and physical health problems. However, defendant's lengthy criminal history demonstrates that all attempts to reform his conduct have been unsuccessful. He has suffered eight prior felony convictions and 22 misdemeanor convictions, served five separate prison terms, and repeatedly violated his parole. He has only been out of custody for 22 months during the 19-year period prior to trial. Thus, the punishment imposed in the present case was not disproportionate to the nature of his offense given his recidivist history.
We next compare the challenged penalty with those imposed for more serious crimes in this jurisdiction. As this court stated in People v. Martinez (1999) 71 Cal.App.4th 1502 (Martinez), "California appellate courts have adopted the reasoning of Rummell v. Estelle (1980) 445 U.S. 263 in upholding life sentences for third strike offenders. [Citations.] In Rummell, the United States Supreme Court upheld a life sentence for a repeat offender after a felony conviction of receiving $121 by false pretenses, with one prior felony conviction for credit card fraud worth $80 and another prior felony conviction for forging a $28 check. [Citation.] The court reasoned that society is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time. [Citation.]" (Martinez, at pp. 1511-1512.) We also note that determining the penalty for crimes is the province of the Legislature, and it is the Legislature that is in the best position to evaluate the gravity of different crimes. Thus, the judiciary defers to its judgments. (Dillon, supra, 34 Cal.3d at p. 477.)
Since defendant's current and prior convictions together are responsible for his punishment in this case (People v. Askey (1996) 49 Cal.App.4th 381, 388), we consider whether defendant's punishment for burglary with four strike convictions is disproportionately greater than the punishment imposed for more serious crimes accompanied by four strike convictions. In that regard, we note that the Three Strikes law treats all such offenders with prior strike convictions the same way (see Martinez, supra, 71 Cal.App.4th at p. 1512) and that, historically, habitual offender statutes and Three Strikes statutes have withstood cruel and unusual challenges. (See, e.g., In re Rosencrantz (1928) 205 Cal. 534, 539; People v. Weaver (1984) 161 Cal.App.3d 119, 126; Martinez, at pp. 1511-1512, 1517.) Thus, a comparison of defendant's sentence with that of other recidivists with a similar record reveals that defendant's state prison sentence of 30 years to life is not cruel or unusual. (Martinez, at p. 1502.)
Defendant has also failed to meet his burden that his sentence is unconstitutional because he has not compared his sentence to those imposed by other jurisdictions for the same offense. (People v. Crooks (1997) 55 Cal.App.4th 797, 808.) We note, however, that California's Three Strikes law is "part of a nationwide pattern of statutes calling for severe punishments for recidivist offenders. [Citation.]" (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
Accordingly, after assessing defendant's sentence in light of the Lynch techniques, we conclude that defendant's sentence is not unconstitutional under the California constitution.
III. Disposition
The judgment is affirmed.
Mihara, J.
WE CONCUR:
Elia, Acting P. J.
Duffy, J.