P. v. Walker

Filed 7/5/07 P. v. Walker CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed as modified with directions.

James Edward Walker entered guilty pleas to sale of cocaine (count 1; Health & Saf. Code,  11352, subd. (a)), and possession of cocaine for sale (count 2; Health & Saf. Code,  11351.5). Walker admitted the truth of enhancements under Health and Safety Code section 11370.2, subdivision (a) and Penal Code section 1203.07, subdivision (a)(11); four prison priors within the meaning of Penal Code section 667.5, subdivision (b), and four serious/violent felony (strike) prior convictions within the meaning of Penal Code section 667, subdivisions (b)-(i).

At the time of sentencing the trial court denied Walker's motion to strike at least three of his serious felony prior convictions and sentenced him to an indeterminate sentence of 25 years to life plus seven years for the enhancements. The trial court imposed a concurrent 25-year-to-life sentence on count 2, possession of cocaine for sale.^[1]

Walker appeals contending the trial court abused its discretion in declining to strike at least three of the serious/violent felony prior convictions; that the sentence imposed is cruel and unusual and that the enhancement imposed under Health and Safety Code section 11370.2 cannot be applied based on prior convictions for crimes in Illinois. We will reject each contention and affirm the judgment as modified to stay the sentence on count 2 pursuant to Penal Code section 654.

STATEMENT OF FACTS

Since this appeal arises from a guilty plea and does not raise any issue regarding the offenses to which the pleas were entered we find it unnecessary to set forth the facts of the offenses. Suffice to note that Walker sold a quantity of cocaine base to an

undercover police officer. He was then arrested with an additional quantity of cocaine base in his possession.

DISCUSSION

A. The trial court's refusal to strike any of the serious/violent felony prior convictionswas not an abuse of discretion.

Walker requested the trial court to strike at least three of the four serious/violent prior felony convictions he had previously admitted. The trial court, noting Walker's virtually continuous criminal conduct for at least 16 years declined and imposed a 25-year-to-life sentence under the Three Strikes law (Pen. Code,  667, subds. (b)-(i)). Walker contends the trial court abused its discretion. We disagree.

We review a trial court's decision not to strike a prior conviction pursuant to Penal Code section 1385 under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) Under this standard, a " ' "decision will not be reversed merely because reasonable people might disagree . . . " ' "; rather, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances [,such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible facts in declining to dismiss [citation], [or where] 'the sentencing norms [established by the Three Strikes Law may, as a matter of law,] produce an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.]" (Carmony, supra, 33 Cal.4th at pp. 377-378.)

A trial court must also " '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 been previously convicted of one or more serious and/or violent felonies' [citation]" before exercising its discretion to strike a felony conviction. (Carmony, supra, 33 Cal.4th at p. 377; People v. Williams (1998) 17 Cal.4th 148, 161.)

The experienced trial judge in this case was clearly aware of his discretion and noted he had exercised that discretion in the past to strike prior convictions when it was appropriate. The judge also noted the nonviolent nature of the current felony, but expressed the view that Walker's long and dismal criminal history did not justify the exercise of such discretion in this case. The trial court's opinion is amply supported by the record.

As we have noted before, Walker has been continuously incarcerated or committing crimes since his juvenile offenses began in 1990. In the time between 1990 and 2006 when he committed the current felonies, Walker had been convicted of six felonies, of which four were serious or violent felonies and served four separate prison terms in Illinois. He performed badly on parole and had only been in California a few months when he committed the current crimes. In short, Walker is the type of recidivist criminal that can reasonably be found to be wholly within the "spirit" of the Three Strikes law. (People v. Williams, supra, 17 Cal.4th at pp. 162-163.)

Moreover, it is not our role to reweigh the sentencing factors or substitute our evaluation for that of the trial court. Because Walker has not shown the trial court considered any impermissible facts in declining to strike three of his serious/violent felony prior convictions, nor has he established that the imposition of the Three Strikes law here warrants departure from the legislatively preferred sentencing scheme, we cannot conclude the court abused its broad sentencing discretion. (Carmony,supra, 33 Cal.4th at pp. 377-378.)

B. The sentence imposed is not cruel and unusual.

Walker next contends his 37-year-to-life sentence shocks the conscience and therefore violates the provisions against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. We reject his arguments and find the sentence imposed in this case does not constitute cruel and unusual punishment.

To the extent Walker relies on the California Constitution, his challenge must be considered in light of In re Lynch (1972) 8 Cal.3d 410,^[2] and People v. Dillon (1983) 34 Cal.3d 441 (Dillon).^[3] Walker does not directly challenge the general facial constitutionality of the Three Strikes law, but argues its application to him is unconstitutional. He thus urges this court to vacate and remand the case for resentencing.

The People in their response argue Walker has waived the issue by not raising it in the trial court. We agree with that contention. Walker never challenged the constitutionality of the sentence. As a result we have only a sparse record as to the nature of his prior strike offenses. Thus Walker has prevented full appellate review and we deem the issue waived. (People v. Scott (1994) 9 Cal.4th 331, 353.) Out of an abundance of caution we will address Walker's contention on their merits.

Walker's arguments fail to appreciate that his punishment under scrutiny here is not only the result of his current offense of sale of cocaine. From our independent review of the record in light of the pertinent law, we conclude application of the Three Strikes law to Walker in this case is not cruel and/or unusual.

As to California's separate constitutional prohibition against cruel or unusual punishment, we note the power to define crimes and prescribe punishment is a legislative function and we may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate that constitutional prohibition. (In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Ultimately, however, the test whether a specific punishment is cruel or unusual is whether it is " 'out of all proportion to the offense' . . . so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinsonv.California (1962) 370 U.S. 660, 676, and citing In re Lynch, supra, 8 Cal.3d at p. 424.)

As we noted in In re DeBeque, the analysis developed in In re Lynch, supra, 8 Cal.3d 410 and Dillon, supra, 34 Cal.3d 441, merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each criterion depends on the facts of the specific case. (In re DeBeque, supra, 212 Cal.App.3d at p. 249.) Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g., Dillon, supra, 34 Cal.3d at pp. 479, 482-488; Peoplev. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200; Peoplev.Young (1992) 11 Cal.App.4th 1299, 1308-1311), the defendant has the burden of establishing his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254-255.) Successful challenges to proportionality are an "exquisite rarity." (Weddle, supra, 1 Cal.App.4th at p. 1196.)

Here, Walker has not met that burden. As noted above, Walker's punishment is controlled in the first instance by his committing the current offense while having previously been convicted of four serious/violent felony offenses plus a prior sale of narcotics. That the Legislature saw it necessary to enact such statutes and sentencing schemes to impose harsher punishment for recidivist offenders like Walker does not shock our conscience.

Walker's prior convictions coupled with his present conduct qualified him for punishment under the Three Strikes law. We believe mandatory imposition of the legislatively required term was proper absent a showing Walker falls outside the spirit of the Three Strikes law, which he does not.

Even if we review the matter by analyzing the factors under the first prong of In re Lynch, supra, 8 Cal.3d 410 (nature of the offense and/or offender), as refined in Dillon, supra, 34 Cal.3d 441, we reach the same conclusion that the total 27-year-to-life term imposed does not constitute cruel or unusual punishment. Unlike the youthful 17-year-old first-time offender in Dillon, Walker was 32 years old at the time he committed the current offense and had served four prior prison terms before the current conduct.

Further, in light of the holdings in Harmelinv.Michigan (1991) 501 U.S. 957, Rummellv. Estelle (1980) 445 U.S. 263, 284-285, and the recent United States Supreme Court companion cases of Ewing v. California (2003) 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63, which held lengthy indeterminate life sentences imposed under California's Three Strikes law for recidivist criminals did not violate the Eighth Amendment, any reliance in this case upon the federal prohibition of cruel and unusual punishment would likewise be unsuccessful. As already noted, Walker suffered four prior serious felony convictions before the offense in this case. He had served four separate prison terms and had been recently released from parole when he committed the current crime.

Given all the relevant considerations, the fact Walker will serve 32 years to life for his most recent felony conviction simply does not shock the conscience or offend concepts of human dignity. We thus conclude Walker has failed to establish his sentence is so disproportionate to his "crime," which includes his recidivist behavior, and that the indeterminate term imposed for that crime does not violate the constitutional prohibitions against cruel and/or unusual punishment.

C. The Illinois prior convictions qualify under Health and Safety Code section 11370.2.

Finally, Walker contends the trial court erred in imposing a three-year enhancement based on an Illinois prior conviction for possession of a controlled substance with the intent to distribute. Walker relies on People v. Burgio (1993) 16 Cal.App.4th 769, which held that foreign prior convictions could not be used as enhancements under the above section. As the People point out, however, in 1998 the Legislature amended Health and Safety Code section 11370.2 by adding subdivision (f) which reads: "(f) Prior convictions from another jurisdiction qualify for use under this section pursuant to [Penal Code] Section 668." (Stats. 1998, ch. 936,  23, p. 5460.)

Walker has not challenged the People's analysis of the effect of the legislative change in 1998. We find the statutory language clearly authorizes the sentence enhancement imposed in this case.

DISPOSITION

The sentence for count 2 is modified to reflect the sentence is stayed pursuant to Penal Code section 654. The superior court is directed to amend the abstract of judgment accordingly and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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^[1] The trial court found that counts 1 and 2 were "part and parcel" of the same transaction and ordered the sentence for count 2 to be both stayed and concurrent with count 1. Walker contends and the People agree that the court should have stayed the sentence on count 2 pursuant to Penal Code section 654. We agree and will order the sentence modified to stay the sentence on count 2. We will direct the trial court on remand to amend the abstract of judgment accordingly.

^[2]In re Lynch applied a three-pronged approach to determine whether a particular punishment is disproportionate to the offense for which it is imposed. (In re Lynch, supra, 8 Cal.3d at pp. 429-438.) Under the first prong, the California Supreme Court examined the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Id. at p. 425.) Second, the court compared the challenged punishment with that prescribed for more serious crimes in the same jurisdiction. (Id. at p. 426.) Finally, the challenged punishment was compared with punishments for the same offense in other jurisdictions. (Id. at p. 427.) After its analysis, the court held an indeterminate sentence of one year to life for recidivists who commit indecent exposure under section 314 was void as cruel or unusual punishment. (In re Lynch, supra, 8 Cal.3d at p. 439.)

^[3] In Dillon the California Supreme Court reaffirmed In re Lynch and concluded that under the facts of that case, the life imprisonment of a 17-year-old defendant for first degree murder based on a felony-murder theory violated California's constitutional prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at pp. 450-452, 477, 482-483, 489.) The court in so deciding refined the first Lynch prong, stating trial and reviewing courts should examine "not only the offense in the abstract[,]" but also "'the facts of the crime in question.' [Citation.]" (Id. at p. 479.) Courts should consider "the totality of the circumstances" including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts. (Ibid.) With respect to the nature of the offender, a court should ask 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." (Ibid.)