P. v. Holloway

Filed 7/12/07 P. v. Holloway CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Kevin Lewis Holloway of transportation of cocaine base (Health & Saf. Code, 11352, subd. (a) -- count one), transportation of heroin (ibid. -- count two), transportation of marijuana (Health & Saf. Code,  11360, subd. (a) -- count three), and conspiracy to transport cocaine, heroin and marijuana (Pen. Code, 182, subd. (a)(1) -- count seven). The jury found true allegations that defendant had suffered a 1988 robbery conviction (Pen. Code, 211) and a 1998 voluntary manslaughter conviction (Pen. Code, 192, subd. (a)). The trial court declined to strike either prior felony conviction. Defendant was sentenced to state prison on counts one, two, and three for concurrent terms of 25 years to life. The sentence on count seven was stayed pursuant to Penal Code section 654.

On appeal, defendant contends (1) the trial courts refusal to strike one or both prior felony convictions was an abuse of discretion, and (2) his sentence of 25 years to life is cruel and unusual within the meaning of the Eighth Amendment to the United States Constitution. We shall affirm the judgment.

FACTS^[1]

The facts of defendants offenses are not at issue and may be briefly stated.

In March 2003 Folsom Prison correctional officers monitored a letter that defendant, an inmate, sent to Cyndra Holloway.^[2] Based on the contents of the letter, officers initiated an investigation into the possible smuggling of narcotics into Folsom Prison during a family visit scheduled for later that month.

During the investigation, four telephone calls were recorded and two letters were monitored. The communications indicated that defendant was conspiring with Holloway and at least four other persons to introduce narcotics into the prison.

Officers obtained a warrant to search Holloway on the day of the family visit. They approached her outside the prisons visitor processing building, informed her of the search warrant, and took control of Holloways handbag. In an interview room, Holloway was asked if she had any narcotics or contraband that she had planned to take into the prison. She answered that she had ibuprofen for a toothache.

The officers read the search warrant to Holloway and explained that she would undergo a body cavity search at a medical facility. She was again asked if she had narcotics or contraband, and this time she answered yes. A female officer watched as Holloway removed three packages from her vagina. The packages contained 36.5 grams of marijuana, 6.7 grams of heroin, and 1.5 grams of rock cocaine.

DISCUSSION

I

Defendant contends the trial court abused its discretion when it denied his motion to dismiss one of the two strike priors in furtherance of justice. We are not persuaded.

Background

Defendant was 43 years old at sentencing. He had a juvenile adjudication of disturbing the peace (Pen. Code, 415) and adult convictions of possession of marijuana for sale (Health & Saf. Code, 11359) in 1986; robbery (Pen. Code,  211) in 1987; burglary (Pen. Code, 459), robbery, and assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) in 1988; receiving stolen property (Pen. Code, 496, subd. (a)) in 1993; possession for sale of cocaine (Health & Saf. Code,  11351.5) in 1994; and voluntary manslaughter (Pen. Code,  192, subd. (a)) with personal use of a firearm (Pen. Code,  12022.5) in 1998. He was in custody on the 1998 offense at the time of the present matter.

Defendant filed a motion to strike one or, alternately, both of his prior strike convictions pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Citing People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), he argued that his character and nature remove him from the category of persons that the spirit of three strikes is directed.

The prosecution opposed the motion, arguing that defendants background, character, and prospects are not sufficiently positive to fall outside the spirit of the three strikes scheme in whole or in part.

At the June 2006 sentencing hearing, defendant argued that he had educated himself in prison, obtained a welding certification and was employable, been a model inmate for the approximately 800 days he was in jail awaiting trial, and had maintained a relationship with his wife and son despite and throughout his imprisonment. Defendant asked the court to strike the 1988 robbery conviction.

The prosecution countered that defendants repeated offenses made him a poster boy for three strikes. While he was becoming skilled at welding, he was also moving up in his gang.

The trial court acknowledged that defendant had been employed, participated in rehabilitation programs, acquired welding skills, maintained his relationship with his family, and had successfully completed parole. The court further acknowledged that if a second strike rather than a third strike sentence were imposed, defendants age upon release from prison (over 50 years) would make him statistically less likely to reoffend. The court stated it would not impose a sentence of 25 years to life as a matter of [its] own sentencing philosophy. But the court acknowledged that very specific factors had to be considered, and strikes could not be dismissed unless the court found that hes outside the scope of the three strikes law.

The court noted that although defendant was somewhat younger at the time of the strike convictions, they both involve[d] violence and they were neither part of the same factual scenario nor so close as to indicate a single period of aberrant behavior. Applying the factors from Romero and Williams, as described in this courts opinion in People v. Strong (2001) 87 Cal.App.4th 328 (Strong), the court stated it simply cant find that [defendant] is outside the scope of the three strikes law.

Analysis

Penal Code section 1385, subdivision (a) states that a judge may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The judge must consider whether, in light of the nature and circumstances of [the defendants] 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. (Williams, supra, 17 Cal.4th at p. 161.)

Our review of this exercise of discretion is deferential. (Williams, supra, 17 Cal.4th at p. 162.) We cannot overturn the trial court unless its ruling falls outside the bounds of reason under the applicable law and the relevant facts [citations]. (Ibid.) In order to fall outside the bounds of reason, the ruling must be palpably arbitrary, capricious and patently absurd. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).)

Defendant first claims the trial court abused its discretion in that it acknowledged the implicit disproportionality and inappropriateness of a Three Strikes sentence in [this] case. We disagree. The court opined that 25 years to life was too much just as a general proposition, as a matter of [its] own sentencing philosophy. But the court properly recognized that applying its own philosophy was not what the three strikes law allows [it] to do.

Defendant next claims the court improperly focused on the violent nature of [his] two strikes and ought to have placed more weight on the non-violent nature of the present offenses and [his] current character. But drugs foment lawlessness and violence within the penal institution. Assaults with deadly weapons, strong-arm robberies, stabbings, voluntary manslaughter, and even murder stemming from conflicts over drugs are foreseeable results. Defendants argument that the present offenses represent[] a de-escalation of criminal behavior vis--vis the prior robbery and manslaughter ignores these foreseeable consequences.

Defendant claims the trial court should have placed more weight on [his] age, which was 43 at the time of sentencing, because recidivism decreases drastically and co-variantly with age. In Strong, supra, 87 Cal.App.4th 328, we rejected an identical contention, explaining: While some courts, in considering whether to dismiss a strike, have considered age in conjunction with the length of the sentence and the defendants prospects, middle age, considered alone, does not remove a defendant from the spirit of the Three Strikes law. Otherwise, those criminals with the longest criminal records over the longest period of time would have a built-in argument that the very factor that takes them within the spirit of the Three Strikes law -- a lengthy criminal career -- has the inevitable consequence -- middle age -- that takes them outside the laws spirit. (Id. at p. 345, fn. omitted.)^[3]

Defendant claims the trial court should have placed more weight on the age of defendants 1988 robbery conviction, which was 18 years at the time of sentencing.^[4] But he cannot prevail on appeal simply by showing that this factor deserved more weight; he must show that the courts ruling was palpably arbitrary, capricious and patently absurd. (Jennings, supra, 81 Cal.App.4th at p. 1314.) He has not done so.

Defendant notes that, aside from the present offense, he behaved well in prison and in local custody while awaiting trial. He took advantage of his time in custody by learning a vocation. The trial court appears to have accepted his statement to the probation officer that he regretted what had happened. But recidivists do not place themselves outside the three strikes schemes spirit simply by behaving well in custody, learning a vocation, and regretting having committed their offenses. (Williams, supra, 17 Cal.4th at p. 161.) Failure to strike a strike on the basis of these postoffense factors was not palpably arbitrary, capricious, or patently absurd. (Jennings, supra, 81 Cal.App.4th at p. 1314.)

Defendant lastly claims leniency was warranted because he acted under duress applied by other prison inmates and these were his first smuggling offenses. The prosecutor challenged the duress claims credibility during summation, and the jury rejected duress and necessity as affirmative defenses. The trial courts failure to rely on the discredited defense and the lack of other smuggling offenses was not arbitrary, capricious, or patently absurd. (Jennings, supra, 81 Cal.App.4th at p. 1314.) Denial of the Romero motion was not an abuse of discretion.

II

Defendant contends his sentence of 25 years to life is cruel and unusual within the meaning of the Eighth Amendment to the United States Constitution. We disagree.

A punishment for a term of years violates the Eighth Amendment to the United States Constitution if it is an extreme sentence[] that is grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 23 [155 L.Ed.2d 108] (Ewing) (plur. opn. of OConnor, J.); Lockyer v. Andrade (2003) 538 U.S. 63, 72 [155 L.Ed.2d 144]; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836] (Harmelin) (conc. opn. of Kennedy, J.).) In a noncapital case, successful challenges to the proportionality of particular sentences have been exceedingly rare. [Citation.] (Ewing, supra, 538 U.S. at p. 21.)

In Ewing,the United States Supreme Court upheld application of Californias three strikes law where the defendant was sentenced to a term of 25 years to life for shoplifting golf clubs worth approximately $1,200. (Ewing, supra, 538 U.S. at pp. 17-18, 30-31.) In rejecting Ewings cruel and unusual punishment claim, the court explained that the Eighth Amendment contains a narrow proportionality principle applicable to noncapital sentences. However, the Eighth Amendment does not require strict proportionality between crime and sentence but only forbids extreme sentences that are grossly disproportionate to the crime. (Ewing, at p. 23.)

Here, defendant conspired with his wife and others to bring cocaine, heroin, and marijuana into a state prison. As the prosecutor noted, drugs in prison pose a substantial danger to correctional officers and inmates alike, in part by creating an atmosphere of lawlessness that is ripe with violence. Defendants offenses are at least as serious as the golf club theft in Ewing. Given the danger posed by the presence of drugs in prison, the punishment of 25 years to life is not grossly disproportionate, nor does it constitute cruel and unusual punishment under the Eighth Amendment.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

DAVIS , Acting P.J.

MORRISON , J.

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^[1] We note that the statement of facts in the Attorney Generals brief falls below the standard expected of a competent appellate attorney. Rule 8.204(a)(1)(C) of the California Rules of Court directs that an appellate brief must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. This rule is intended to direct the appellate court to evidence in the record. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) Despite this well-established rule, the only citations to the record in the Peoples factual summary are citations to the probation officers report, rather than to the pertinent evidence at trial in the reporters transcript. The summary of facts prepared by the probation officer for the sentencing court is not evidence; it is a hearsay synopsis of the facts, which may be taken from police reports or the victims statements, and not the evidence at trial. (People v. Otto (2001) 26 Cal.4th 200, 207-208; People v. Lockwood (1967) 253 Cal.App.2d 75, 81.) In the future, we expect the Attorney General to comply with applicable appellate rules and provide the appropriate citations to the record.

^[2] Cyndra Holloway, defendants wife, was a codefendant at trial. She pled no contest to a related count and agreed to testify against defendant in exchange for dismissal of six counts and a promise of no state prison at the outset. She is not a party to this appeal.

^[3] Although one justice on the panel in Strong concurred in the result, the opinion is nonetheless a precedential decision of this court. The trial judges remarks to the contrary are incorrect.

^[4] Defendants opening brief incorrectly lists the priors age as 28 years.