P. v. Larimore
Filed 5/31/07 P. v. Larimore 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Placer)
‑‑‑‑
THE PEOPLE, Plaintiff and Respondent, v. CHESTER DREW LARIMORE, Defendant and Appellant. | C052577 (Super. Ct. No. 62042936) |
A jury convicted defendant Chester Drew Larimore of unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)), displaying false license plates (Veh. Code, 4463, subd. (a)), false impersonation of another (Pen. Code, 529), two counts of possession of a forged drivers license (Pen. Code, 470b),[1]possession of anothers identifying information (Pen. Code, 530.5, subd. (d)), possession of a completed check with intent to defraud (Pen. Code, 475, subd. (c)), two counts of possession of anothers access card information with intent to use it fraudulently (Pen. Code, 484e, subd. (d)), three counts of possessing a blank check with the intent to defraud (Pen. Code, 475, subd. (b)), forgery or counterfeiting of a public seal (Pen. Code, 472), making, uttering, or passing counterfeit paper (Pen. Code, 648), possession of a counterfeiting apparatus (Pen. Code, 480, subd. (a)), acquiring four or more access cards with the intent to defraud (Pen. Code, 484e, subd. (b)), and possession of a methamphetamine pipe (Health & Saf. Code, 11364).
Defendant admitted five serious or violent felonies within the meaning of the three strikes law. (Pen. Code, 667, subds. (b)-(i) & 1170.12.) The trial court denied defendants motion to dismiss the strikes under Penal Code section 1385 and sentenced him to 75 years to life in state prison.
On appeal, defendant contends his sentence violates the state and federal constitutional prohibitions on cruel and unusual punishment. We reject the contention and shall affirm.
FACTUAL BACKGROUND
Around 1:30 a.m. on December 1, 2003, Roseville Police Department Sergeant Troy Bergstrom stopped a red Isuzu Rodeo for traffic violations. Defendant was the driver. When asked his name, defendant told Sergeant Bergstrom his name was John Montoya.
Sergeant Bergstrom conducted a pat-down search of defendant and found a large wallet or checkbook in his back left pocket. A backup officer searched the wallet and found several identification cards, credit cards, and other items with different names on them, including defendants. The VIN on the Isuzu, which did not match the license plates, came back as a stolen vehicle.
The Isuzu was then searched. Among the numerous items found in the search were: completed checks from various accounts made out to several different identities; several checkbooks, again in various names; false identification cards in various stages of completion; laminated paper used for making identification cards; several credit card and drivers license applications; and a hotel bill from the Circus Circus in Reno bearing the name of the registered owner of the stolen Isuzu. Officers also found a checkbook in the name of Liquita Crouch containing 12 counterfeit bills.
A glass pipe for smoking drugs was found in the front pocket of a shirt on the front seat of the Isuzu. The Isuzu also contained a black bag with various paperwork, including a check register, checks, a mutual fund statement for Lisa Thinger, a registration for a 1969 Ford; title to both a 1994 Plymouth and a 1989 Ford; a sellers permit from the Board of Equalization for Stephen Pegram and Harold Simms; and a community college completion certificate for Brian Charles.
Officers also found a folder containing: counterfeit money; uncompleted counterfeit money; copies of checks made to different persons and companies; a registration for an officers class on narcotics; another folder with information on Lisa Thinger; an identification card for Gary Junior Freena; a piece of paper with what appeared to be credit card numbers; and an invoice from a golf club.
An expert in identity theft testified that, in his opinion, the Isuzu was a mobile identity theft lab, and defendant was pretending to be other persons in order to avoid being caught. Some of the identity cards were possessed for the purpose of sale.
A computer monitor, printer, scanner, and a laptop computer were found in the back of the Isuzu. Secret Service Special Agent Nicole Pfeiffer, an expert in genuine currency and counterfeiting apparatus, testified that the computer gear and counterfeit currency seized from the Isuzu were sufficient to allow the manufacturing of counterfeit money.
Defendant testified on his own behalf. According to defendant, when he was arrested he had been working as a confidential informant for an undercover agent named Carlos Ruiz and a Drug Enforcement Agency agent named Robert Palimino. Except for the methamphetamine pipe, which was defendants, all of the items found in the Isuzu had been placed there by Manny Olguin, who manufactured false identifications and counterfeit money, and whom defendant had been trying to set up for an arrest.
DISCUSSION
Defendants sole contention is that his 75‑year‑to‑life sentence under the three strikes law violated the state and federal prohibitions against cruel and unusual punishment. He has forfeited these claims by failing to raise them specifically in the trial court. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) However, in order to forestall a claim of ineffective assistance of trial counsel, we shall reach the merits. (Ibid.)
A punishment violates the Eighth Amendment if it involves the unnecessary and wanton infliction of pain or if it is grossly out of proportion to the severity of the crime. (Gregg v. Georgia (1976) 428 U.S. 153, 173 [49 L.Ed.2d 859, 874-875].) A punishment may violate article I, section 17 of 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.)
We analyze three criteria to determine whether a sentence is cruel or unusual under article I, section 17 of the California Constitution: the nature of the offense and the offender (with particular attention to the degree of danger both present to society); a comparison of the sentence with those for other more serious offenses under California law; and a comparison of the sentence with those in other states for the same offense. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.)
Looking at the first area of focus‑‑the nature of the offense and the offender‑‑defendants sentence is not so disproportionate to the crime to shock the conscience. Defendant has had a consistent history of criminal conduct warranting his lengthy incarceration. Among his 15 prior felony convictions are two bank robbery convictions, and convictions for residential burglary, aggravated assault and aggravated battery. As defendant admitted at the sentencing hearing, Ive been a criminal all my life.
Regarding the second area of focus‑‑a comparison of the sentence with punishments for more serious offenses in California‑‑defendant argues his sentence is cruel and unusual because a defendant convicted of various violent crimes would receive lesser sentences than defendant, who was convicted of property crimes. He also argues that but for the three strikes law, defendants sentence would be no more than 51 years, and would more likely be nine years.
These arguments are unpersuasive. Defendants punishment is based on his status as a third strike offender. [T]he three strikes law punishes not only [defendants] current offenses, but also his recidivism. California statutes imposing more severe punishment on habitual criminals have long withstood constitutional challenge. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.)
Defendant also argues his sentence is unconstitutional because most other jurisdictions apply recidivist laws more narrowly. As explained in People v. Martinez (1999) 71 Cal.App.4th 1502: That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require conforming our Penal Code to the majority rule or the least common denominator of penalties nationwide. [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (Id. at p. 1516.) The court continued, Whether a particular punishment is disproportionate to the offense is a question of degree. The choice of fitting and proper penalty is not an exact science but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. (Ibid., quoting People v. Cooper (1996) 43 Cal.App.4th 815, 827.)
Nor does defendants sentence violate the federal Constitutions Eighth Amendment. In Harmelin v. Michigan (1991) 501 U.S. 957, 961, 996 [115 L.Ed.2d 836, 843, 865] the Supreme Court upheld a life sentence without parole for possession of a large quantity of drugs. Similarly, in Rummel v. Estelle (1980) 445 U.S. 263, 264-265, 284-285 [63 L.Ed.2d 382, 385, 397]) a life sentence for a nonviolent recidivist was upheld.
Defendant has a considerable burden in challenging a penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.) Pursuant to the separation of powers doctrine, the courts will not lightly encroach on matters which are uniquely in the domain of the Legislature, such as the definition of a crime and the determination of its punishment. (Ibid.) Defendant has a lengthy criminal history of both violent and nonviolent felonies. He stands convicted of 14 felonies and three misdemeanors here. His sentence does not offend the federal or California Constitutions.
DISPOSITION
The judgment is affirmed.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
DAVIS , J.
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[1] The court records and abstract erroneously list this count as a violation of Penal Code section 470, subdivision (b), whereas it should be Penal Code section 470b.
