P. v. Johnson

Filed 7/25/06 P. v. Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed.

A jury convicted Periece Johnson of sale of cocaine base (count 1: Health & Saf. Code, § 11352, subd. (a)) and possession of cocaine base for sale (count 2: Health & Saf. Code. § 11351.5). After trial, Johnson admitted three prior "strike" convictions (Pen. Code,^[1] §§ 667, subds. (b)-(i), 668, 1170.12) and one prior prison term (§ 667.5, subd. (b)). The court sentenced Johnson to a total prison term of 26 years to life, consisting of an indeterminate 25-year-to-life term under the Three Strikes law for count 1, plus a stayed concurrent 25-year-to-life term for count 2, plus a consecutive one-year term for the prior prison term.

Johnson appeals, contending (1) the court abused its discretion in failing to dismiss his two robbery strike priors, and (2) the imposition of a 25-year-to-life sentence violates both California and federal constitutional prohibitions against cruel and unusual punishment. We affirm.

FACTUAL BACKGROUND

In the afternoon of December 28, 2004, San Diego Police Department narcotics team members conducted an undercover "buy/bust" operation. During a buy/bust operation, an undercover officer tries to buy drugs with money previously prerecorded or photocopied. After the buy, team members will match serial numbers with money in possession of the suspect. Before the operation, undercover Detective David Hall prerecorded two $20 bills and one $5 bill and distributed copies among the team. During the operation, Detective Hall approached a man, later identified as Leland Dorman, near the southeast corner of 17th and J Streets in downtown San Diego. Detective Hall asked Dorman where he could purchase a "2-0," street slang for $20 worth of cocaine base. Dorman replied "over here," pointing and leading Detective Hall to Johnson at the corner of 17th and K streets. Dorman asked Johnson if he could "hook [them] up." Detective Hall stepped forward showing a prerecorded $20 bill to Johnson. Johnson reached into his waist and removed a paper towel containing two off-white rocks. Detective Hall handed Johnson the prerecorded $20 bill and Johnson gave Detective Hall one off-white rock. The San Diego Police Department crime lab later determined the rock was cocaine base. Detective Hall then communicated to narcotics team members a prearranged "bust" signal. Within minutes, Officer Matthew Zdunich detained Johnson. Detective Hall made a curbside identification of Johnson as the seller, and Officer Zdunich arrested him for sale of cocaine base.

DISCUSSION

I. FAILURE TO DISMISS THE ROBBERY STRIKE PRIORS

Johnson contends the court abused its discretion by failing to dismiss his two robbery strike priors. We reject this contention.

A. Applicable Legal Principles

Qualifying prior "serious" and/or "violent" felony convictions may serve to enhance sentences under the California Three Strikes law. (§ 667, subds. (b), (d)(1).) Robbery and attempted voluntary manslaughter qualify to enhance sentences for new felony offenses under the Three Strikes law. (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(1), (39).)^[2]

The California Supreme Court in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero), held that under section 1385, subdivision (a), a trial court has limited discretion to strike prior felony conviction allegations under the Three Strikes law and may only exercise that discretion "in furtherance of justice." To guide the lower courts in the exercise of that discretion, the Romero court explained that the "amorphous" term "in furtherance of justice" in section 1385 "'"requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal."'" (Romero, supra, 13 Cal.4th at pp. 530-531, quoting People v. Orin (1975) 13 Cal.3d 937, 945, italics omitted.)

In People v. Williams (1998) 17 Cal.4th 148, 161, the California Supreme Court further defined "in furtherance of justice" under section 1385, subdivision (a), stating the analysis should 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" to determine whether the defendant falls within the spirit of the Three Strikes law.

"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 375.) The Supreme Court in Carmony explained 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 p. 377.) Further, the high court stated that the Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm" (id. at p. 378), and, in doing so, it "creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Ibid.)

B. Background

Johnson admitted three strike priors alleged in the information. First, he admitted a robbery conviction in Arkansas. Next, he admitted a robbery conviction in Mississippi. Finally, Johnson admitted an attempted manslaughter conviction in California. All three prior convictions qualified as strikes under California's Three Strikes law. (See §§ 667.5, subd. (c)(9), 1192.7, subds. (c)(1), (39).)^[3]

At sentencing, Johnson invited the court to exercise its discretion and dismiss the two robbery convictions admitted as strike priors, one from 1975, the other from 1986.^[4] Citing Romero, the court stated it considered "the nature of the offense, the age of the strike priors, the defendant's recent criminal history, whether the defendant has been to prison, [and] the underlying facts of the strike priors." Reviewing these factors in light of Johnson's criminal history, the court found that "[Johnson's] been in custody - I won't say continuously, but off and on since . . . 1975." Concerning Johnson's current conviction, the court stated, "for [a conviction for selling drugs] to come after a 30 or so year history of violent crime [and] incarceration seems to me an ultimate disrespect for the law and indicates that this defendant comes directly within the spirit of the [Three Strikes law]."

C. Analysis

Johnson claims that he is not the "revolving-door type of criminal the three strikes law was designed to incarcerate." This claim is unavailing. The nature and circumstances of Johnson's current offense are not minimal. The court correctly found that selling drugs is "not an insignificant crime." A cocaine sale on a public street corner to a stranger shows disrespect for the law.

Johnson's claim that his sale of a "min[i]scule" amount of cocaine base is typical of a street level sale to obtain drugs for himself is also unavailing. The amount of drugs, 0.24 grams of cocaine base, does not reduce Johnson's culpability.

Johnson's criminal record establishes a history of serious and/or violent felonies coupled with repeated parole violations. In 1975, during commission of his first felony, Johnson robbed the victim of $35, beating him in the process. For this first conviction Johnson served more than three years of a 10-year sentence before he was released on parole. Less than a year later, he violated parole by committing a second robbery and was returned to custody.

He was convicted of this second robbery in 1986. Johnson received a 10-year sentence, five years were suspended, and he served less than five years before release.

In 1989, after his release, Johnson was convicted of a third felony, attempted voluntary manslaughter. During a dispute, Johnson had shot the unarmed victim in the head. After serving about 10 years of an 18-year 6-month sentence, Johnson was released on parole in 1999. He violated parole and returned to custody in 2001. He was again released in 2002.

Prior to the instant offenses, Johnson committed three misdemeanors, the last of which involved fighting or challenging another person to fight in a public place (§ 415(1)) while he was on probation.

We conclude the nature and circumstances of Johnson's present felony offenses, together with his record of criminal recidivism, place him within the spirit of the Three Strikes legislation. We also conclude the court's decision was not "so irrational or arbitrary that no reasonable person could agree with it" (People v. Carmony, supra, 33 Cal.4th at p. 377), and the court's decision against dismissing the prior strikes was not an abuse of discretion. (People v. Williams, supra, 17 Cal. 4th at p. 162.)

II. Cruel and Unusual Punishment

Johnson also contends imposition of a 25-year-to-life sentence violates the state and federal constitutional prohibitions against cruel and unusual punishment. We reject this contention.

A. California Law Claim

Article I, section 17 of the California Constitution provides: "Cruel or unusual punishment may not be inflicted or excessive fines imposed." Further, section 24 of article I mandates that California courts interpret the California constitutional prohibition against cruel and unusual punishment in a manner consistent with the federal Constitution.^[5]

The burden a defendant must overcome when contending a particular punishment is cruel or unusual under the California Constitution is considerable. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) The California Supreme Court has stated that "a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment." (People v. Wingo (1975) 14 Cal.3d 169, 174.)

In In re Lynch (1972) 8 Cal.3d 410 (Lynch) our high state court explained that the judiciary's function when enforcing the constitutional prohibition against cruel or unusual punishment is to determine whether the punishment exceeds constitutional limits while according the Legislature "the broadest discretion possible in enacting penal statutes and in specifying punishment for crime." (Id. at p. 414; People v. Dillon (1983) 34 Cal.3d 441, 477-478 (Dillon).)

The court in Dillon reaffirmed Lynch, stating that "a statutory punishment may violate the constitutional prohibition . . . if it is grossly disproportionate to the offense for which it is imposed. (Dillon, supra, 34 Cal.3d at p. 478, citing Lynch, supra, 8 Cal.3d at pp. 423-424, fn. omitted.)

In Lynch, the court adopted three "techniques" for analyzing whether a particular punishment is cruel or unusual under the California Constitution. (Lynch, supra, 8 Cal.3d at pp. 425-429.) Subsequently, the techniques were adapted in Dillon to aid determination of whether a punishment is grossly disproportionate to a crime under the Three Strikes law. (Dillon, supra, 34 Cal.3d at p. 479.)

The first Lynch technique examines the nature of the offense and the offender, particularly regarding the degree of danger both pose to society. (Lynch, supra, 8 Cal.3d at p. 425; Dillon, supra, 34 Cal.3d at p. 479.) The nature of the offense is examined considering both the crime in the abstract and the totality of the circumstances surrounding its commission. (Dillon, supra, 34 Cal.3d at p. 479.)

The second Lynch technique compares the challenged sentence with punishments for more serious offenses in the same jurisdiction. (Lynch, supra, 8 Cal.3d at p. 426.) The third Lynch technique compares the challenged sentence with punishments for the same offense in other jurisdictions. (Lynch, supra, 8 Cal.3d at p. 436.)

The foregoing Lynch techniques merely provide guidelines for cruel or unusual punishment determinations based on the facts of a particular case. (People v. Ayon (1996) 46 Cal.App.4th 385, 398-399.) A determination of whether a particular punishment is cruel or unusual under the California Constitution can be made on the first technique alone. (Ayon, supra, 46 Cal.App.4th at p. 399.)

Ultimately, the test in California for determining whether a particular offense constitutes cruel or unusual punishment is whether, "'although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (Dillon, supra, 34 Cal.3d at p. 478, quoting Lynch, supra, 8 Cal.3d at p. 424.)

Here, possession for sale and sale of cocaine base are felonies. The totality of the circumstances surrounding Johnson's cocaine sale shows his current offenses were serious when consideration is given to the brazen manner in which Johnson sold cocaine base to a stranger, in the afternoon on a public street corner. Johnson attempts to minimize the sale arguing the amount, 0.24 grams of cocaine base, is miniscule. However, testimony at trial revealed street level drug dealers do not commonly possess large quantities. The quantity Johnson sold does not reduce his culpability in committing the sale. The buy/bust operation was carried out only after residents in the area complained of drug activity.

As to the nature of the offender, Johnson poses a danger to society based on his record of criminal recidivism. Since 1973, Johnson has suffered three serious and/or violent felony convictions, once receiving a suspended sentence, and twice receiving parole. Despite many opportunities to reform, Johnson has repeatedly reoffended upon parole or release.

Johnson's 25-year-to-life sentence is not grossly disproportionate to a drug sale combined with repeated parole violations after suffering serious and/or violent felony convictions. He has failed to show that his sentence is grossly disproportionate to the punishment imposed for other offenses to which the Three Strikes law may apply. Given the totality of the circumstances, we conclude the imposition of a 25-year-to-life sentence for felony possession for sale and sale of cocaine base does not "'[shock] the conscience [or offend] fundamental notions of human dignity.'" (Dillon, supra, 34 Cal.3d at p. 478.)

B. Federal Law Claim

The Eighth Amendment of the United States Constitution is applicable to California by way of the Fourteenth Amendment and provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In Harmelin v. Michigan (1991) 501 U.S. 957, Justice Kennedy's concurrence concluded that although the cruel and unusual punishments clause 'encompasses a narrow proportionality principle,' the Eighth Amendment "does not require strict proportionality between crime and sentence[, but r]ather it forbids only extreme sentences that are 'grossly disproportionate' to the crime." (Harmelin, at p. 1001, citing Solem v. Helm (1983) 463 U.S. 277, 288, 303.)

In two recent decisions, the United States Supreme Court held sentences imposed under California's Three Strikes law did not violate the federal constitutional prohibition against cruel and unusual punishment. (Ewing v. California (2003) 538 U.S. 11; Lockyer v. Andrade (2003) 538 U.S. 63.)

In Ewing, the Supreme Court compared the gravity of the offense with the harshness of the penalty. (Ewing v. California, supra, 538 U.S. at p. 28). In her lead opinion, Justice O'Connor stated, "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.) Justice O'Connor explained the rationale for this approach: "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.'" (Ibid., quoting Rummel v. Estelle (1980) 445 U.S. 263, 276; Solem v. Helm, supra, 463 U.S. at p. 296.) Further, the high court in Solem stated that reviewing courts "should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments of crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals." (Solem v. Helm, supra, 463 U.S. at p. 290, fn. omitted.)

Here, Johnson's 25-year-to-life sentence is not grossly disproportionate when weighed against his sale of cocaine base and his long record of criminal recidivism.

Johnson claims the nonviolent nature of his current offense did not result in physical injury to any member of society. This attempt to minimize the seriousness of his most recent crimes is unavailing. Justice Kennedy in his concurrence in Harmelin identified potential impacts of drug use and drug dealing on society, stating "(1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture." (Harmelin v. Michigan, supra, 501 U.S. at p. 1002.)

Johnson's criminal history, which spans more than 30 years, includes three serious and/or violent felonies, two parole violations, and three recent misdemeanors, the last involving violence. Johnson's 25-year-to-life sentence is not grossly disproportionate considering the nature of his current offenses and his criminal recidivism. We conclude the sentence does not violate the federal constitutional prohibition against cruel and unusual punishment.

Johnson's reliance upon Banyard v. Duncan (C.D.Cal 2004) 342 F.Supp.2d 865 to support the contention that his sentence constitutes cruel and unusual punishment under the federal Constitution is misplaced. The conviction in Banyard was for felony possession of cocaine base rather than possession for sale and sale of cocaine base. (Banyard, supra, 342 F.Supp.2d at p. 868.) 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, the record establishes that each of Johnson's three prior strikes is a conviction of a serious or violent felony. (See §§ 667.5, subd. (c)(9), 1192.7, subds. (c)(1), (39).)^[6]

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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^[1] All further statutory references are to the Penal Code.

^[2] Section 667.5, subdivision (c)(9) provides: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (c) For the purposes of this section, 'violent felony' shall mean any of the following: [¶] . . . [¶] (9) robbery." Section 1192.7, subdivision (c)(39) provides in part: "serious felony" means any of the following: [¶] (1) Murder or voluntary manslaughter; . . . [and] (39) any attempt to commit a crime listed in this subdivision other than an assault." (Italics added.)

^[3] See fn. 2, ante.

^[4] There is some confusion about the date of this conviction in the briefs, but based on certified court documents read into the record by the trial court the conviction date was in 1986.

^[5] Article I, section 24 of the California Constitution provides in part: "In criminal cases the rights of defendant . . . to not suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this state in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States." (Italics added.)

^[6] See fn. 2, ante.