P. v. Shigaura

Filed 10/30/06 P. v. Shigaura CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew C. Kauffman, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Ron Hitoshi Shigaura appeals from a judgment of conviction entered after a jury trial. The jury found him guilty of vandalism causing over $400 in damages (Pen. Code, § 594, subd. (a)) and found true the allegations he had suffered two prior felony convictions within the meaning of Penal Code sections 667, subdivisions (b)-(i), and 1170.12.[1] The trial court denied defendant’s request to strike one of his prior convictions (id., § 1385) and sentenced him to 25 years to life imprisonment. On appeal, defendant contends the trial court abused its discretion in denying his request and/or that his sentence constitutes cruel and unusual punishment. We disagree and affirm.

FACTS

In 2002, Nicole Soghomonian (Soghomonian) started work as a teller at the Washington Mutual Bank branch in Torrance. Defendant began coming into the bank on a regular basis. He would shout out Soghomonian’s first name and wait for her window to be open. He asked her personal questions and his behavior became increasingly bizarre.

After a two-month absence, defendant returned to the bank on August 9, 2003. He went to Soghomonian’s window and asked her if they were friends. She said they were not; he was just another customer. He became upset and left the bank.

Customer Anthony Zotti (Zotti) saw defendant’s behavior in the bank. When he left the bank, he saw defendant scratching a white Mustang with a metallic object. Zotti went back into the bank and told Soghomonian what he had seen. She went outside and saw that her car, which had a personalized license plate that read, “Nicole,” had been deeply scratched all over. The damages exceeded $2,000.

Soghomonian transferred to another branch of the bank, but defendant walked into that branch, shouting that he had found her. She became frightened and telephoned the police. They arrived at the bank and placed defendant under arrest.

Defendant exhibited similar behavior toward two other women, although he did not damage their property. One of the women obtained a restraining order against him.

According to Dr. Kaushal Sharma, a forensic psychiatrist, defendant suffered from schizophrenic disorder or schizoaffective disorder, and he was very depressed. His mental condition could cause behavior that was obsessive, erratic, and aggressive.

DISCUSSION

Defense counsel requested that the trial court exercise its discretion under Penal Code section 1385 to strike one of defendant’s prior convictions and sentence him as a second strike offender. He explained that over the two and one-half years he had represented defendant, defendant had been in Patton State Hospital for a significant period of time. Defendant clearly was mentally ill, but he had no awareness of his mental illness. While defendant frightened Soghomonian, he only damaged a car. Defense counsel wanted defendant to be able to get out of prison and get help for his mental illness.

The prosecutor acknowledged that defendant “was clearly suffering from a very serious mental disorder“ but thought that defendant “has demonstrated time and time again his willingness to commit crimes, his disregard for what hopes he had to be rehabilitated with minor prison sentences, and again and again he’s violating parole, committing new crimes, and, quite frankly, has two prior strikes and other felony convictions all the way back to 1985.” The prosecutor did not believe that defendant’s mental illness should “shield him from the appropriate punishment in this case.” The prosecutor added that defendant could receive treatment for his mental illness in prison.

The trial court stated that there had been from the outset of this case “a question, as to what to do with [defendant]. The court was uncertain whether it was an appropriate case in which to exercise its discretion . . . .” For this reason, the court ordered a diagnostic study. Based on the study, the court determined that an exercise of discretion was not appropriate. Defendant “is stubborn, he lacks common sense, and whether as a result of mental illness or not, . . . I cannot state with any degree of confidence that he has prospects for anything in the future other than further antisocial behavior.”[2]

California courts routinely uphold three strikes sentences for nonviolent offenses such as defendant’s. (See, e.g., People v. Murphy (2001) 88 Cal.App.4th 392, 394; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094.) The United States Supreme Court as well has upheld the imposition of a three strikes sentence when the current offense is nonviolent and relatively minor. (Lockyer v. Andrade (2003) 538 U.S. 63, 70-77; Ewing v. California (2003) 538 U.S. 11, 28-31.) Such a sentence does not constitute cruel and unusual punishment. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631; People v. Ingram (1995) 40 Cal.App.4th 1397, 1415-1416, review den. Mar. 14, 1996, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.)

Neither does it constitute an abuse of discretion. (See, e.g., People v. Thornton (1999) 73 Cal.App.4th 42, 48-49; People v. Bishop (1997) 56 Cal.App.4th 1245, 1251.) A court reasonably may determine that in light of both the defendant’s past and present offenses, “and the particulars of his background, character, and prospects, the defendant [should not] be deemed outside the three strikes scheme’s spirit, in whole or in part, and hence should [not] 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.)

The only thing that distinguishes defendant from the multitude of defendants whose three strikes sentences for relatively minor offenses have been upheld is his mental illness. Defendant cites no authority to suggest that his mental illness rendered it an abuse of discretion to impose a three strikes sentence, and we have found none. In another context, however, our Supreme Court held that it was not cruel and unusual punishment to impose the death penalty on a mentally ill and schizophrenic defendant, where his mental illness was not sufficient to negate his culpability for his crimes. (People v. Poggi (1988) 45 Cal.3d 306, 348.) We similarly conclude that imposition of a three strikes sentence on defendant in the instant case was not cruel and unusual punishment. Additionally, in view of his recidivism and inability to conform his behavior to the requirements of the law, the trial court did not abuse its discretion in refusing to strike one of defendant’s prior convictions. (People v. Williams, supra, 17 Cal.4th at p. 161; cf. People v. Thomas (1986) 41 Cal.3d 837, 841, fn. 3.)[3]

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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[1] The jury was unable to reach a verdict as to the second charge against defendant, stalking (Pen. Code, § 646.9, subd. (a)). The court declared a mistrial on that charge and dismissed it.

[2] The record shows that defendant was convicted of battery in 1985. He was convicted of burglary in 1988 and sent to prison, paroled in 1991, convicted of burglary in 1992, placed on probation but returned to prison in 1994 for violation of parole. Later in 1994, he was convicted of grand theft and sentenced to prison. In 1997, he was convicted of possession of a controlled substance and sentenced to state prison. In 2003, he was returned to prison for violation of parole after stalking and sexually harassing a woman who worked at a mall. While on parole, he committed the instant offense.

[3] In any event, as the People point out, defendant waived his claim of cruel and unusual punishment by failing to raise it below. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.