P. v. King

Filed 2/9/06 P. v. King 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977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, Joan P. Weber, Judge. Affirmed.

I.

INTRODUCTION

Appellant James S. King appeals from a final judgment following a jury trial in which he was convicted of felony robbery (Pen. Code,^[1] § 211). After finding true the allegations that King had been convicted of two prior felony robberies, the trial court sentenced King to 30 years to life in state prison. King challenges his sentence, contending that the trial court abused its discretion by not dismissing at least one of his prior strikes and that the sentence constitutes cruel or unusual punishment as prohibited by the California Constitution. We conclude that the trial court's decision to not strike one of King's prior strikes was not an abuse of discretion, and that the sentence does not violate the California Constitution's prohibition against cruel or unusual punishment. We thus affirm the trial court's judgment and sentence.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

Following a bifurcated jury trial, King was convicted of one count of robbery, in violation of section 211. At a later bench trial, the court found true the allegations that King had suffered two prior felony robbery convictions and that he had incurred two strike priors (§§ 667, subd. (a)(1), 667.5, subds. (b)-(i), 668, and 1170.12).

The court sentenced King to a term of 30 years to life on February 15, 2005. This included a term of 25 years to life for the robbery and five additional years for the serious prior felony. King filed a timely notice of appeal on February 15, 2005.

B. Factual Background

On the afternoon of March 5, 2004, King entered a Guarantee Bank in Vista, California, and gave a bank teller a handwritten note demanding money. The bank teller gave King "bait money," which had recorded serial numbers so that it could be identified later. The teller also gave King a dye pack, which exploded shortly after King left the bank.

Theresa Adams-Hydar, a San Diego County Deputy Sheriff, responded to a dispatch call to the Guarantee Bank. Deputy Adams-Hydar apprehended King approximately 15 to 20 minutes after the robbery. The bank teller identified King as the robber during a curbside lineup. Law enforcement officers found $20 bills and clothing stained with red dye in a washing machine at a coin-operated laundromat located near where King was found. King's fingerprints were on the washing machine. The serial numbers from the bills in the washing machine matched the serial numbers of the bills stolen from Guarantee Bank. King had red dye on his hands. Officers recovered $2,641 from the washing machine, $120 from King's pockets, and $115 from nearby bushes. The total amount of money recovered, $2,876, was the exact amount of money taken during the robbery.

III.

DISCUSSION

A. The trial court did not abuse its discretion in refusing to strike one of King's

prior strike convictions

King contends that the trial court should have stricken one of his prior strike convictions, in the interest of justice, and that the trial court's failure to do so constitutes an abuse of discretion. In considering whether to dismiss a defendant's prior strike conviction, a trial court is required to consider whether, given "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." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

In this case, King was charged with two strike priors for previous bank robbery convictions, and the court found that King had in fact been convicted of those offenses. At his sentencing hearing, King filed a motion to strike one of his two prior strike convictions. In support of his motion, King's defense counsel argued that King did not understand the potential severity of the punishment that could result from application of the three strikes law. His attorney pointed out that King was not from California, that his previous bank robbery convictions had occurred in federal court and King was sentenced to only five years in federal prison for those offenses, and that King "probably thought well, this is a federal case" and expected to receive a sentence similar to the five-year sentence he had received in federal court. In addition, King argued that he had never actually injured anyone during his crimes, but rather, that he had "simply made a demand and a threat that he had a gun and made off with the money," The trial court denied King's motion to strike a strike prior.

As King acknowledges, we review the trial court's decision not to dismiss a strike for an abuse of discretion. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434 (Romero).) "'Under [the deferential abuse of discretion] standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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.]' [Citation.]" (Ibid.)

On appeal, King contends that there "are strong arguments" that he "should be treated as though he [falls] outside the Three Strikes scheme." King maintains that there are "several potentially mitigating factors in this case." According to King, these mitigating factors include the fact that he was under the influence of marijuana and alcohol when he committed the Guarantee Bank robbery, that he expressed sincere remorse for committing the crime and wanted the bank teller to know that he was sorry, and that he was homeless and had no job or money at the time he committed the robbery. He also contends that his addiction to alcohol and marijuana should have been considered a mitigating factor relevant to the trial court's evaluation of King's "'background, character and prospects' . . . ."^[2] King also relates his history as a loner who was taken

from his mother and stepfather by his biological father on two occasions and "picked on" by other students when he was young. He cites to a psychological report in which the evaluator opines that King was successful on parole because "the structure and accountability inherent in parole helped [him] remain law abiding, decrease his substance abuse, and maintain stable relationships," but that "[i]n the absence of structure, [he] abuses substances and becomes depressed, desperate, sullen, and withdrawn."

King also contends that he has positive "future prospects" and that this weighs in favor of striking one of his prior strikes. Among the factors he cites are that he is of average intelligence, that he does not suffer from mental illness, and that, according to a defense expert, he "is at low risk of future violence." King also notes that although his two prior bank robberies "are technically considered 'violent felonies,'" there was no evidence that he was armed or that he used a weapon during the robberies.

It appears from the record that the trial court examined all of the relevant facts of King's history and his future prospects, and determined that the circumstances of King's prior offenses outweighed any of these potentially mitigating factors. The court focused on the relatively short time between King's release from prison and his latest bank robbery, and also the fact that the robberies in which he had participated "were very legitimate robberies" and that "[t]here was a threat made to have a gun in each occasion." The court even noted that despite the opportunities King had after serving his prior prison sentence because of his intelligence and background, he had nevertheless chosen to go back to robbing banks. The court stated,

"I do find robbery to be a violent crime. Whether a defendant actually displays a gun to the teller or just threatens to have a gun, we all are aware of circumstances where these turn into very violent situations when customers or security guards or bank personnel get frightened--and who wouldn't--and take some type of action. And that's why these crimes are punished very seriously under our penal code. . . . . [¶] Mr. King, it's always disappointing to me when I see a man that had a lot on the ball. You could have done many things with your life, sir. You have a good head on your shoulders. You seem to have done well in school. . . . Why you chose as a profession to be a bank robber is a question only you can answer."

King attempts to minimize the seriousness of his offense by emphasizing that he did not use a gun or other weapon during the commission of his prior or current crimes. This ignores the magnitude of King's crimes. Robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211, italics added.) The Legislature has determined that it is appropriate to treat robbery as both a "'violent felony'" (§ 667.5, subd. (c)(9)) and a "'serious felony'" (§ 1192.7, subds. (c)(19) & (d)). Further, the list of "'violent crimes'" defined by section 667.35, subdivision (c), which includes robbery, is followed by a clear legislative pronouncement: "The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person." (See also People v. Cuevas (2001) 89 Cal.App.4th 689, 703 (Cuevas).)

King also has a history of committing other offenses. In 1994 he was convicted of misdemeanor battery and placed on probation for three years. While on probation, King was convicted of two counts of felony bank robbery and was sentenced to five years in federal prison and two years of supervised parole.

The first prior bank robbery occurred in Missouri in December 1995. King and another man entered a bank and the other man handed the teller a note stating that they had a gun and demanded money.^[3] King left Missouri and a warrant for his arrest was issued. King then committed another bank robbery in Sacramento, California, in June 1996. King denied that he used a gun or other weapon during this offense. In August 1996, King was arrested at his place of employment in Vista, California. King pled guilty to both the Missouri and Sacramento robberies, and on January 3, 1997, he was sentenced to concurrent terms of 60 months in federal custody and two years of supervised release.

King committed the current offense just over two years after he finished serving his sentence for the prior bank robberies. The circumstances of the current offense, the fact that he committed two prior bank robberies, and the short period of time that elapsed between when King was released from prison and when he committed the bank robbery in this case, do not support striking a prior strike offense.

The trial court concluded that the nature of the prior offenses, the current offense, and the timing of the offenses outweighed any mitigating factors. Based on all of these circumstances, it appears from the record that the trial court acted well within its discretion in determining that the proffered mitigating factors did not take King outside the spirit of the three strikes law, in whole or in part. (Williams, supra, 17 Cal.4th at p. 161.) We thus affirm the trial court's decision to deny King's request to strike one of his prior strike convictions.

B. King's sentence does not constitute cruel or unusual punishment

King maintains that the sentence of 30 years to life amounts to a "potential life sentence" and that it violates the California Constitution because it shocks the conscience and offends fundamental notions of human dignity. The Attorney General contends that King cannot raise the claim on appeal that his sentence violates the California Constitution's prohibition against cruel or unusual punishment^[4] because he failed to raise the claim in the trial court. King contends that his claim "falls within one of the recognized exceptions" to the forfeiture rule because "it raises a deprivation of his fundamental right to a fair trial." However, contrary to King's contention, courts have held that when a defendant fails to raise a claim of cruel or unusual punishment in the trial court, the defendant forfeits that particular claim. (See People v. Kelley (1997) 52 Cal.App.4th 568, 583; see also People v. Davis (1995) 10 Cal.4th 463, 507, fn. 8.)^[5] Nevertheless, we consider the merits of King's claim of cruel or unusual punishment because doing so will serve the interests of judicial economy. (People v. Norman (2003) 109 Cal.App.4th 221, 230 [in order to prevent "inevitable ineffectiveness-of-counsel claim," court addressed merits of defendant's cruel or unusual punishment arguments despite fact that defendant had forfeited claim].)

A sentence may violate the state constitutional ban on cruel and unusual punishment "'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.' [Citation omitted.]" (People v. Dillon (1983) 34 Cal.3d 441, 478.) In Romero, supra, 99 Cal.App.4th at pages 1431-1432, the court outlined the well established framework for considering claims of cruel or unusual punishment under the state Constitution:

"'In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. [Citations.] First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions.' [Citation.]"

A defendant must overcome a considerable burden to establish that the sentence was disproportionate to his level of culpability. Successful challenges to proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) In applying the Romero framework, courts in numerous California cases have rejected claims that sentences under the three strikes law violated the state Constitution's prohibition against cruel or unusual punishment. (E.g., Romero, supra, 99 Cal.App.4th at pp. 1431-1432; People v. Cortez (1999) 73 Cal.App.4th 276, 286; People v. Askey (1996) 49 Cal.App.4th 381, 388.)

Because King focuses his argument on the first two prongs of the Romero analysis, we focus our analysis correspondingly. King initially contends that the totality of circumstances in this case establishes that the sentence of 30 years to life is grossly disproportionate to his individual culpability. He notes that his criminal history is not violent, consisting of two bank robberies that did not involve the possession or use of weapons and did not result in injury to any person. He also notes that the current offense did not involve the use of weapons and did not result in injury. He thus contends that he has no history of violence and that he does not pose a significant danger to society. For the reasons discussed above, we disagree with King's characterization of his offenses and the circumstances of the crimes.

However, even if we did consider King's crimes to be nonviolent, as he suggests, "recidivism is a legitimate factor to consider when imposing a greater sentence than for a first time offense." (Cuevas, supra, 89 Cal.App.4th at pp. 704-705; see also People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) "[S]ociety 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." (People v. Martinez, supra, at p. 1512; see also People v. Cooper (1996) 43 Cal.App.4th 815, 823-824 (Cooper) ["Under the three strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]"])

The fact that King believed he could rob another bank and receive another five-year sentence indicates that King was neither deterred nor rehabilitated by his prior time in prison. Rather, it suggests that if King were to receive a similar sentence, he might again resort to robbing banks after serving his sentence, if he once again found himself facing circumstances similar to those he claims led him to rob the Guarantee Bank. This type of conduct is exactly what the three strikes law is intended to address, as

"[t]he primary goals of recidivist statutes are: '. . . to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.' [Citation.]" Cooper, supra, 43 Cal.App.4th at p. 824, quoting Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)

In Romero, supra, 99 Cal.App.4th at page 1433, the court upheld a sentence of 25 years to life for a defendant who had two prior nonviolent felony convictions and who stole a magazine, determining that the sentence was not cruel or unusual punishment under the California Constitution. King's current offense is more serious than the third offense committed by the defendant in Romero. In light of the holding in Romero, we disagree with King that the nature of his offense and the totality of the circumstances suggest that his sentence is grossly disproportionate to his crime.

King also compares his punishment with punishments prescribed for more serious crimes in California and with what he contends is the "ordinary sentence range" for "second degree robbery." We reject King's comparison of his sentence to sentences imposed for manslaughter, assault with a deadly weapon, kidnapping, mayhem, and other violent crimes, or with the "ordinary sentence range" for a serious robbery. (See, e.g., Romero, supra, 99 Cal.App.4th at p. 1433 ["'Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendant's] punishment for his "offense," which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons.' [Citation.]"].)

In view of the nature of King's offenses and his continuous and serious criminal history, we conclude that the sentence imposed was not disproportionate to the crime charged. We thus conclude that King's sentence does not constitute cruel or unusual punishment under the California Constitution.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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^[1] Further statutory references are to the Penal Code unless otherwise noted.

^[2] California Rules of Court, rule 4.423 includes in its enumerated "circumstances in mitigation" the fact that the defendant suffers from a mental or physical condition that significantly reduces his or her culpability. King acknowledges that rule 4.423 applies only to convictions involving determinate sentencing, and that it does not apply to his indeterminate sentence. He thus concedes that the cases he cites, such as People v. Simpson (1979) 90 Cal.App.3d 919, which discuss alcoholism as a potentially mitigating circumstance under the determinate sentencing scheme, also do not apply to this case. He suggests that in the context of indeterminate sentencing, the issue of alcoholism should be considered during an evaluation of the background, character, and prospects of a defendant.

^[3] Apparently neither King nor his accomplice actually used a gun during the course of the robbery.

^[4] Article I, section 17 of the California Constitution, formerly article I, section 6, provides that "Cruel or unusual punishment may not be inflicted or excessive fines imposed."

^[5] In Kelly, supra, 52 Cal.App.4th at page 583, the court concluded that the defendant had waived his claim that his sentence constituted cruel or unusual punishment by failing to raise the issue below. "[T]he terms 'waiver' and 'forfeiture' have long been used interchangeably. The United States Supreme Court recently observed, however: 'Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.]' [Citation.]" (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.) This situation presents a circumstance more appropriately falling within the doctrine of forfeiture, and not waiver.