P. v. Young
Filed 5/2/07 P. v. Young CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, Plaintiff and Respondent, v. DARRELL EUGENE YOUNG, Defendant and Appellant. | C051839 (Super. Ct. No. 04F10753) |
A jury found defendant Darrell Eugene Young, a prison inmate, guilty of possessing a sharp instrument and/or slungshot, and the trial court found that he had two prior serious felony convictions within the meaning of the three strikes law and had served a prior separate prison term. Defendant was sentenced to 25 years to life, with a consecutive one-year term for the prior prison enhancement.
On appeal, defendant contends (1) the trial court abused its discretion in not striking, for purposes of sentencing, defendants prior felony convictions, (2) his sentence constitutes cruel and unusual punishment, and (3) there is an error in the abstract of judgment. We shall affirm the judgment and direct the trial court to correct the abstract.
FACTUAL BACKGROUND
In July 2004, defendant was a Folsom State Prison inmate serving a 15-year-to-life sentence for second degree murder. During the inmate release for the morning meal on July 6, 2004, defendant remained on the tier instead of going down one of the staircases with the other inmates. He then started swinging socks over his head in a circular motion, yelling Come on with it and motioning for three other inmates to come over to his side. The inmates turned and walked toward another stairwell.
A correctional officer ordered defendant to drop what he was holding, [g]et on the wall, and cuff up. Defendant complied. Correctional officers found that he had two knotted tube socks, each containing a 15-ounce can of mackerel and a five- to six-inch sharpened metal rod with masking tape and cloth wrapped around the end.
DISCUSSION
I
Defendant contends the trial court abused its discretion when it denied his motion to dismiss one or both of his strikes for purposes of sentencing. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (hereafter Romero).) According to him, the court failed to consider all the relevant sentencing factors and did not impose an equitable sentence. The contention fails.
In Romero, [the Supreme Court] held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony . . . in furtherance of justice pursuant to Penal Code section 1385[, subdivision] (a). (People v. Williams (1998) 17 Cal.4th 148, 158.) In ruling whether to do so, the court must consider whether, in light of the nature and circumstances of [the defendants] 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 schemes 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. (Id. at p. 161; People v. Barrera (1999) 70 Cal.App.4th 541, 553-554.) The trial courts ultimate conclusion is evaluated under the deferential abuse of discretion standard. (People v. Myers (1999) 69 Cal.App.4th 305, 309.)
A
Rather than summarizing defendants criminal history and the trial courts decision, we quote the ruling on the Romero motion, which begins with a detailed recitation of defendants criminal history:
In 1972 at the age of 12 the defendant was detained by the Los Angeles Police Department for cutting another minor with a razor allegedly in self-defense. No criminal conviction or petition resulted.
In 1975 at the age of 16 the defendant and a friend broke into a home and were in the process of stealing valuables from the home when police interrupted them. Again there was no prosecution.
In 1975 he was received into the custody of the Los Angeles Police Department for a robbery offense. His Department of Justice criminal history records reflect that he was subsequently received by the California Youth Authority on a robbery charge from Los Angeles County. The facts of this offense are unknown.
On May 21, 1977 at the age of 17 the defendant robbed a victim at gunpoint, taking his car, money and wallet.
On May 25th, 1977, four days later, the defendant robbed a woman at gunpoint. When acquaintances of the woman began to intervene, the defendant shot at their car. The defendant fled in a vehicle, leading officers on a vehicle chase that at times exceeded speeds of 100 miles per hour. The chase ended when the defendant collided with a traffic sign. The car the defendant was driving was the vehicle he had stolen four days earlier. The defendant was prosecuted as an adult, and was subsequently convicted of vehicle theft and robbery, which constitutes the conviction for [his] first prior strike. He was sentenced to a term of five years to life.
On March 30th, 1981, shortly after his release from custody for the robbery and auto-theft incidents, and while under Youth Authority supervision, the defendant was seated in a car with a friend of his, [C.L.], when a subject came up to the side of the car where [C.L.] was seated, and shot [C.L.] several times into his head. The victim died as a result of the shooting, and [defendant] was prosecuted as an accomplice after it was determined that he had set up [C.L.] to be killed. [Defendant] was convicted of second-degree murder and was sentenced to 15 years to life in prison. [He] is still serving that sentence at this time.
Since [defendant]s sentence to state prison, the Court notes the following about [his] in-prison conduct:
On June 19th, 1991 he lost 30 days of conduct credit for threatening staff.
On August 14, 1992 he lost 360 days of conduct credit for assaulting a fellow inmate with a weapon. For this offense, which involved [defendant] stabbing the other inmate with some sort of metal pointed object, he was prosecuted and convicted of Penal Code Section 4502(a) and sentenced to a term of state prison of three years to life.
Of course on July 6th, 2004, he was found in possession of the weapon that is the subject of prosecution in the current case, and was found guilty by jury on July 26th, 2005.
On July 8th, 2004 he lost 180 days of conduct credit for battery on a CDC staff.
On August 18th, 2004 he lost 121 days of conduct credit for battery on CDC staff.
On September 29th, 2005, while pending sentencing on the current case, he was allegedly involved in an incident wherein he reached his arm through an open food port on his cell door, and threw a brown liquid substance on two CDC officers, striking one in his head, face, neck, torso, waist and right legs [sic]. The other officer was struck on his upper left shoulder and cheek area. The brown substance appeared to contain, at least in part, fecal matter.
It is clear to this court that a review of [defendants] prior conduct, while one could argue is decreasing in the level of violence, is increasing in frequency, and is still plagued with the type of violence that the Three Strikes law is intended to punish.
I have considered the facts and circumstances of the current case. I understand that [defendants] possession of a weapon in this case did not result in physical harm to anyone. I understand that [his] use of the weapon arguably did not place anyone else in harms way.
The difficulty I have is that [defendant] was in possession of a weapon at all. After a lifetime of incarcerations for violence involving weapons, after a conviction for this possession of a weapon while in prison custody in 1993, he chooses on the occasion of the current case to again possess a weapon. [He] has demonstrated a propensity for violence.
Additionally, while pending sentence on this case, the defendant engages in another act of violence by dousing CDC staff with some sort of liquid containing suspected fecal matter.
It appears to the Court that [defendants] prospects to remain free from violence or other criminal acts and to have a stable, law-abiding life are doubtful and are very poor.
The Court cannot find that [defendant] falls outside the spirit of the Three Strikes law, and acting in my discretion, I am not going to dismiss either of [his] prior strike convictions.
B
Defendant complains that the trial court focused only on defendants criminal history, his conduct in prison, and the fact he was armed with a weapon during the commission of his current offense, and that the court failed to discuss defendants age, the remoteness of his prior serious felony convictions, his mental issues (which he argues likely contributed to his current offense and his throwing fecal matter on correctional officers), or the fact that he had never personally injured any individual in the commission of his offenses. We are not persuaded.
Defendant has failed to show that the trial courts decision was irrational or arbitrary; and there is no indication whatsoever in the record that the court failed to consider relevant factors in making its decision. The memorandum of points and authorities that defendants trial attorney filed in support of the Romero motion brought to the courts attention the factors it should consider, the circumstances of defendants current and former crimes, and his mental issues. Counsel reiterated his position at the sentencing hearing. Both the prosecutor and defense counsel specifically addressed and directed the court to People v. Williams, supra, 17 Cal.4th 148, which sets forth relevant factors for the court to consider in exercising its discretion. In addition, the court specifically noted the required weighing process in making its ruling. In short, the court was aware of its discretion and obviously arrived at its decision after due consideration of the appropriate factors. The fact that the court focused its explanatory comments on a certain factor or factors does not mean that it failed to consider other relevant factors. (Cf. People v. Myers, supra, 69 Cal.App.4th at p. 310.)
Although defendant repeatedly insists that his three-strikes sentence is inequitable because his offense was non-violent, the possession of a weapon in prison has great potential to erupt into the actual use of the weapon upon another. The fact that defendant possessed a weapon after a previous conviction for having done so, and while serving a sentence for a violent crime such as murder, demonstrates that he is not someone who can conform his conduct to the rules of a civilized society and still represents a threat to public safety.[1]
The court did not exceed the bounds of reason in rejecting defendants argument that he is outside the spirit of the three strikes law. (People v. Williams, supra, 17 Cal.4th at pp. 161-162.) Indeed, the court would have abused its discretion if it had granted the motion.
II
We also reject defendants argument that his term of 25 years to life, consecutive to the 15-year-to-life sentence he was already serving, constitutes cruel and unusual punishment under the Eighth Amendment to the federal Constitution and article I, section 17 of the California Constitution.
The People correctly point out that defendant forfeited this claim by failing to raise it at the time of sentencing. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In any event, it has no merit.
In defendants view, his sentence is excessive and unnecessary because, [b]ased on the harsh reality of the current release rate for life prisoners in California, even if [he] were to serve enough of his sentences so that he reached parole eligibility, he would never be released on parole. Thus, he argues, [h]is two sentences are tantamount to a multicentury sentence that is impossible to serve during ones lifetime. However, California courts repeatedly have upheld lengthy prison sentences that exceed a defendants possible lifetime. (See, e.g., People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [upholding sentence of 283 years and 8 months]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531 [upholding sentence of 129 years].)
Defendant relies upon a concurring opinion by Justice Mosk for the proposition that a term of imprisonment in excess of life is excessive, unnecessary, and uncivilized under federal and state constitutional law. (People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.).) As we stated when confronted with the same argument in People v. Byrd (2001) 89 Cal.App.4th 1373, at page 1383, no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.] (People v. Stewart (1985) 171 Cal.App.3d 59, 65; see People v. Ceballos (1974) 12 Cal.3d 470, 483.) Because no other justice on our Supreme Court joined in Justice Mosks concurring opinion [in People v. Deloza, supra] it has no precedential value.
In light of the serious nature of defendants crime in the prison setting and the long and serious nature of defendants history of criminal misconduct, his sentence is neither cruel nor unusual.
III
Defendant contends, the People concede, and we agree that the abstract of judgment incorrectly shows the one-year sentence enhancement was imposed pursuant to section 667.5, subdivision (a), instead of subdivision (b).
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to show the one-year sentence enhancement was imposed pursuant to section 667.5, subdivision (b), and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
SCOTLAND, P.J.
We concur:
DAVIS , J.
RAYE , J.
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[1] Nor are we persuaded by defendants argument that his sentence is inequitable because he did not personally shoot the victim of defendants prior murder conviction but, instead, drove him to an agreed upon place where his associate shot and killed the victim.
