P. v. Lechuga

Filed 10/30/06 P. v. Lechuga CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Larry Manuel Lechuga of first degree burglary. (Pen. Code, §§ 459, 460, subd. (a); further undesignated statutory references are to the Penal Code.) The trial court found true four serious felony allegations (§ 667, subd. (a)), and eight strike allegations (§§ 667, subds. (b)-(i), 1170.12), arising from eight prior first degree burglary convictions. The trial court declined to strike any of the prior convictions and sentenced defendant to state prison for 25 years to life for the burglary plus 20 years for the prior convictions.

On appeal, defendant contends (1) evidence of his spontaneous declaration was erroneously excluded, (2) his request for CALJIC No. 2.21.2 was erroneously refused, (3) his Romero^[1] motion to strike seven of his eight strikes was erroneously denied, and (4) his sentence of 45 years to life constitutes cruel and unusual punishment. We shall affirm the judgment.

FACTS

On November 7, 2004, at around 4:00 a.m., Howard Meadows was at his home in Sacramento. Meadows’s parents were asleep and he was in his bedroom watching a movie. Meadows’s dog was with him. The bedroom door was open, and the back door of the house was unlocked.

Meadows saw his dog turn her head and make a strange gesture. He looked up and saw a low, dim light illuminating the hallway in a panning motion. Meadows got up to investigate and saw defendant in the hallway. Defendant was unknown to Meadows and did not have permission to be in his house. Defendant turned and ran out the back door. Meadows chased him and caught him when he reached the fence of a house across the street. Meadows tackled defendant and wrestled him to the ground. Defendant dropped a pair of cotton gardening gloves by the fence. Meadows dragged defendant back to his front yard and yelled for his parents to help him. Although defendant resisted, Meadows held defendant down.

Meadows’s father came outside and retrieved some plastic zip ties to restrain defendant. Meadows tied up defendant’s ankles and Meadows’s stepmother telephoned 911.

Sacramento County Sheriff’s Deputy Duncan Brown arrived at Meadows’s residence and saw defendant lying in the street. Officer Brown followed Meadows as he retraced his pursuit of defendant. Officer Brown located a pair of tan gloves lying near a fence across from the Meadows’s home. Officer Brown retrieved from defendant’s belt a small flashlight with a minimal light beam. Officer Brown opined that such a flashlight was preferable to an ordinary flashlight, which would draw too much attention to the perpetrator.

Defendant did not testify.

DISCUSSION

I

Defendant contends the trial court abused its discretion and violated due process by excluding evidence of his spontaneous statement during the altercation with Meadows that he was “looking for his girlfriend’s house.” We are not persuaded.

Background

At the preliminary examination, Meadows testified that he tackled defendant and briefly struggled with him. Defendant “seemed to plead to the fact that he was . . . looking for his girlfriend’s house or something of the sort.”

Defendant moved in limine to admit his statement that he was looking for his girlfriend’s house. He argued that the statement was an excited utterance. (Evid. Code, § 1240.) The People filed opposition. The trial court denied the request, holding that, under the facts of the case, the statement was not spontaneous.

Analysis

Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

“A spontaneous declaration is admissible, despite its character as hearsay, because of its particular reliability as the immediate product of direct perception, before fading memory or the opportunity for fabrication has intervened.” (People v. Arias (1996) 13 Cal.4th 92, 150; italics added.)

“Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court ‘necessarily [exercises] some element of discretion . . . .’ [Citation.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.) That discretion is at its broadest when the trial court determines whether the utterance was made before there had been time to contrive and misrepresent. (Id. at pp. 318-319.)

In this case, the trial court found that an opportunity for fabrication had intervened before defendant made the disputed statement. The court explained that defendant’s “history shows he is a residential burglar,” and that his response was “a learned response that he has had to learn from his occupation.” The court further explained, “it is a very brief statement, it is easily imagined or contrived, doesn’t take long to contrive it, and, with his history, the Court finds that this is not a totally unexpected event that he would be totally surprised by.”

Rather than demonstrating that these findings lack evidentiary support, defendant simply argues that the trial court should have made different findings that favored him: that his “statement was made while [he] was still under the stress of the excitement caused by what he had just seen and experienced. He had just seen that he was at the wrong house. He was chased away and then tackled and beaten.”

Because the record supports the trial court’s findings, defendant has not shown an abuse of its broad discretion. (People v. Poggi, supra, 45 Cal.3d at pp. 318-319.) Application of the ordinary rules of evidence did not violate defendant’s due process right to present his defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Mincey (1992) 2 Cal.4th 408, 440; People v. Hall (1986) 41 Cal.3d 826, 834.)

II

Defendant contends the trial court erred by refusing his request to instruct the jury with CALJIC No. 2.21.2 (2003 Rev.), which provides: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” Defendant claims the instruction was justified by discrepancies between Meadows’s testimony at the preliminary examination and his ensuing testimony at trial. We disagree.

The first discrepancy is as follows: at the preliminary hearing, Meadows was asked, “Was the door to your bedroom opened?” He replied, “It was cracked.”

At trial, Meadows testified on direct examination, “I always have [the door] open.” On cross-examination, this exchange ensued:

“Q. [BY DEFENSE COUNSEL]: Okay. Now, when your dog first noticed the light, you indicated that your door was open, right?

“A. I never close my door.

“Q. All right. How far open was it? Was it open just a crack?

“A. Maybe halfway, cracked open. It’s never all -- it is never all the way open, but it is never all the way closed.

“Q. So was it cracked open like --

“A. 45, 50 percent -- I would say 50 percent.” (Italics added.)

Thus at trial, Meadows used the word “cracked” to describe a door that was open “[m]aybe halfway,” or “45, 50 percent.” At the preliminary examination, Meadows had used the same word and presumably had intended the same meaning. No falsehood, willful or otherwise, appears.

The second discrepancy is as follows: at the preliminary hearing, Meadows testified that he tackled defendant at a fence across the street and then dragged him back to Meadows’s house, holding defendant by the “[b]ack of his collar and the back of his ass.” At trial, Meadows confirmed on cross-examination that he “grabbed [defendant] by the back of the shirt and the back of the pants,” and “dragged [defendant] back to [Meadows’s] house.”^[2] No willful falsehood appears.

The third discrepancy occurred at trial: Meadows denied punching or kicking defendant and admitted that there “[m]ight have been a little bit of roughing up.” Meadows’s father testified that he looked out the window and saw what he believed to be “two people fighting[.]” The father’s mere belief that the two people were “fighting” does not suggest that Meadows’s testimony had been willfully false. CALJIC No. 2.21.2 was properly refused.

III

Defendant contends the trial court abused its discretion when it denied his Romero motion to strike seven of his eight strikes. He claims that, due to his “peculiar personal circumstances,” he does not come within the spirit of the three strikes law. We disagree.

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 defendant’s] 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 (hereafter Williams).)

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.)

Defendant was 49 years old, had a present conviction of first degree burglary, eight prior convictions for first degree burglary, and prior convictions for resisting arrest, assault on a peace officer, and petty theft. He had been committed to state prison four times. The trial court commented, “it is hard to remember a case in which somebody has quite so many -- I’ve had people with many priors but [not] so many in the same category.”

Defendant was diagnosed with major depressive disorder, polysubstance dependence, and mild mental retardation. Family members reported that during childhood he suffered from what is now known as attention deficit hyperactivity disorder. During adolescence, he began a heavy use of marijuana, LSD, and PCP. His mother received SSI for mental problems, although opinions differed as to whether she was mentally ill or a “‘system user.’” When defendant was approximately 13 years old, his mother divorced her husband and informed defendant that the husband, who had raised defendant, was not his biological father. Defendant was on SSI for his own mental problems when he was committed to jail.

The trial court concluded: “while I have sympathy for the history and the problems of the Defendant, he fits -- with the one exception of mental retardation or a mild mental retardation, he fits pretty much the classic case for the strike system, which is someone who will not slow down, will not learn, and continues to reoffend. . . . . . . I do not feel a showing is made that warrants the Court striking his prior burglary convictions in this case to get them down to either zero or to one. There are just too many of them over too many years and too many times he returns to the same pattern of conduct, which I must assume is what happened here.”

Defendant does not attempt to show that the foregoing reasoning was palpably arbitrary, capricious, or patently absurd. (People v. Jennings, supra, 81 Cal.App.4th at p. 1314.) Instead, he argues that he “used no violence in the commission of the present offense[,]” and that “[a]ny violence involved was instigated by” Meadows.

However, as the prosecutor noted in opposing the motion, defendant’s first degree burglary of an occupied dwelling is considered to be nonviolent only because the People chose not to plead and prove that a person, other than an accomplice, was present in the residence during the burglary. (§ 667.5, subd. (c)(21).) Although not pled, the statute reflects a legislative determination that a burglar is responsible for any expectable and predictable violence initiated by persons present in the dwelling. Defendant’s suggestion that Meadows was responsible for any violence runs counter to the legislative determination. Denial of the Romero motion was not an abuse of discretion.

IV

Defendant contends “[t]he imposition of a 45 years to life sentence on this mentally retarded defendant who did nothing violent” violates the state and federal proscriptions of cruel and unusual punishment. He objected at trial that a life sentence would be cruel and unusual. He now contends that, for a 49-year-old defendant, a sentence of 45 years to life is effectively a sentence of life without possibility of parole.

The federal Constitution “‘forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.’” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135.) The United States Supreme Court has upheld sentences including life without parole for possession of a large amount of drugs by a first time felon (Harmelin v. Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836]), and life for a recidivist thief (Rummel v. Estelle (1980) 445 U.S. 263 [63 L.Ed.2d 382]; see also Ewing v. California (2003) 538 U.S. 11, 14, 20-31 [155 L.Ed.2d 108, 113, 116-123] [upholding sentence of 25 years to life for theft of three golf clubs worth $399 apiece where the defendant had prior strike convictions]; and Lockyer v. Andrade (2003) 538 U.S. 63, 66, 70-77 [155 L.Ed.2d 144, 151, 154-159] [upholding two consecutive 25-year-to-life terms for theft of videotapes worth approximately $150 taken from two different stores where the defendant had prior strike convictions]). If these sentences for nonviolent offenses are not cruel and unusual, then neither is a 45-years-to-life term for a first degree burglary in which an occupant encountered the burglar.

A punishment may violate the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) The factors to be considered include the nature of the offense and the offender, the penalty imposed for more serious crimes, and the penalty imposed for the same offense in other jurisdictions. (Id. at pp. 425-428.)

Regarding the nature of the offense, defendant acknowledges that he “does have a habit of going into other people’s residences and did so here.” He claims “nonviolent crimes are less serious than crimes marked by violence or the threat of violence“ (quoting Solem v. Helm (1983) 463 U.S. 277, 292-293 [77 L.Ed.2d 637]; italics added), but he overlooks the threat of violence that is implicit whenever a burglar enters an inhabited dwelling. The fact no one was actually injured may lessen the absolute magnitude of the offense, but it does not mean that the sentence was grossly disproportionate to the recidivist offense. Because defendant has been convicted of nine burglaries and has served four prior prison terms, the application of the three strikes law to this case is neither cruel nor unusual punishment.DISPOSITION

The judgment is affirmed.

MORRISON , Acting P.J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

^[2] At the preliminary examination, the magistrate chastised Meadows for using the word “ass” in court. At trial, the word “pants” was chosen by defense counsel, not by Meadows.