P. v. Aguilar

Filed 6/25/07 P. v. Aguilar CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Darlene E. Schempp, Judge. Affirmed.

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.

Kisasi Aguilar appeals from the judgment entered following a jury trial in which he was convicted of four counts of first degree residential burglary, counts 2 through 5, (Pen. Code, 459) and one count of receiving stolen property, count 8, (Pen. Code,  486, subd. (a)). The jury also found that counts 3, 4 and 5 were violent felonies within the meaning of Penal Code section 667.5, subdivision (c) in that another person, other than an accomplice, was present in the residence during the commission of the offense. He admitted that he had two prior convictions of serious or violent felonies within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)(i) & 1170.12, subds. (a)-(d)) and within the meaning of Penal Code section 667, subd. (a)(1).[1]He was sentenced to a life term with a minimum sentence of 25 years for each of his burglary convictions to run consecutively, plus 10 years for the two enhancements under Penal Code section 667, subdivision (a)(1). His sentence of life with a minimum of 25 years for count 8 was ordered stayed pursuant to Penal Code section 654. He contends the trial court abused its discretion under Penal Code section 1385 when it refused to strike at least one of his prior serious convictions. Additionally, he claims his 10-year plus 100-year to life prison term constitutes cruel and/or unusual punishment. For reasons stated in the opinion we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On January 5, 2005, at approximately 7:00 p.m., Rick Lint and his wife locked and left their apartment in the City of Van Nuys. As they were walking to the front door of the complex, Mr. Lint saw two men in the hallway. One of the men offered to hold the door open for Mr. Lint and they spoke to each other. When Mr. and Mrs. Lint returned to their apartment shortly after midnight, Mr. Lint noticed the sliding glass door was open and its frame was bent as though someone had pried it open. His front door was unlocked and there was mud on the carpet. He and his wife were missing approximately 215 DVDs , a telephone, two pairs of rollerblade skates, a dog carrying bag and a suitcase. The property was valued at approximately $3,500. On February 1, 2005, he identified appellant in a photo lineup as the man who had held the door open for him.

Ricardo and Ann Grempel and their son also lived in the same apartment complex. On January 7, 2005, at approximately 11:00 a.m., Mr. Grempel was home in the bathroom about to take a shower, when he heard someone open the door to the apartment. When he went into the living room to investigate, he saw two men. One was behind the sofa and the other, appellant, was looking for stuff inside the living room. When Mr. Grempel asked them what they were doing, they looked at each other and then left. Mr. Grempel heard one of them say to the other something to the effect of they better leave fast.

On January 9, 2005 at approximately 3:00 p.m., Ms. Grempel was home alone when she heard someone knock at the door. She was tired and did not answer the door. Approximately 10 minutes later, when she opened her bedroom door, she saw appellant in her kitchen holding a trash container. She asked him what he was doing in her house. When she attempted to grab the telephone, he headed toward her. Ms. Grempel ran into her bedroom and held the door closed with her body. Appellant attempted to open the door and she threatened to call the police. After three attempts at opening the door, appellant left. When Ms. Grempel left her bedroom approximately 15 or 20 minutes later, she observed that her sons PlayStation 2 was disconnected and moved away from the television set.

David Mead lived in the same apartment complex. He slept there the night of January 28, 2005 and when he awoke the next morning, he noticed the sliding glass door and screen into his apartment were open. There appeared to be marks from a crowbar around the door frame and the door, where it had been jimmied open. Mr. Mead discovered his wallet, a DVD collection, a figurine and a book were missing. He later learned from the police that attempts to use his bankcard had been made that morning.

On February 1, 2005, appellant and his accomplice, Edwin Martinez, were arrested. A search of their residences uncovered property belonging to the Grempels, the Lints and Mr. Mead.

Mr. Martinez testified that appellant recruited him to act as a look-out during some burglaries. Appellant broke into apartments by prying open windows or sliding glass doors. Mr. Martinez helped appellant commit the burglaries on January 7 and January 28. After the burglary of Mr. Meads apartment, appellant and Mr. Martinez unsuccessfully tried to use Mr. Meads bankcard.

DISCUSSION

I

Appellant contends the trial court abused its discretion when it refused to strike at least one of the two prior serious felony convictions. We disagree.

At the Romero motion,[2]defense counsel argued appellant did not have a record of violence, his M.O. has always been not to do any harm in terms of physical harm to victims. He is a burglar. And when confronted with people at the premises, he didnt hurt anybody. He didnt physically attack anybody. In fact, he absconded immediately.[3]Counsel claimed appellant was a thief who had committed numerous burglaries, but in the great scheme of things, in terms of the Three-Strikes law, . . . [it] should only be imposed on the worst of the worst. Counsel argued appellants crimes did not rise to the level of other crimes where people had stolen hundreds of millions of dollars, which have literally destroyed the lives of thousands. . . of people, in terms of their pension plans . . . .

In opposition, the prosecution argued appellant had been given several opportunities, because of his prior convictions, to be rehabilitated and change his ways but has continued in the same line of work, and he has gotten worse. He has victimized the same family, we know, based upon the convictions, at least twice, and what we allege in the information, a third time.[4] In three out of these four convictions persons were present. And we all know the danger that could have happened, the danger that presents itself when victims are present. This defendants actions show no sign of remorse, no sign of someone who is not a violent criminal. And our society has deemed residential burglaries, in particular, with persons being present as violent felonies. We believe that there is absolutely no basis for the court to exercise [its] discretion in this case by striking a strike. We believe that the sentence we requested under Three Strikes is appropriate for this repeat offender who keeps escalating the types of crimes he commits.[5]

In response, defense counsel argued the fact that appellant returned to the scene of previous burglaries indicated a lack of sophistication.

In denying the motion, the court stated it might have granted the motion but for the fact that when confronted by his female victim, instead of retreating, he chose to go to the bedroom door and push on it when she threatened to call the police.

[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his 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. (People v. Williams (1998) 17 Cal.4th 148, 161.)

A courts failure or refusal to dismiss or strike a prior conviction allegation under Penal Code section 1385 is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.)

In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) Our review of the record indicates the trial court understood it had the discretion to strike priors and its decision not to was neither irrational nor arbitrary.[6]

II

Appellants claim that his sentence constitutes cruel and/or unusual punishment is without merit. A sentence may violate the state constitutional ban on cruel or unusual punishment 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. [Citations.] [] In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. [Citations.] First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions. [Citation.] (People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1432.)

Appellants prior record and the present offense demonstrate that his sentence does not violate constitutional principles. Based on the nature of his current crimes, his recidivist behavior and his failure at rehabilitation, his sentence was proportionate to the nature of the offense and the offender.

The second prong of analysis involves a comparison of the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. [Citation.] (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) However . . . this step is inapposite to three strikes sentencing because it is a defendants recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendants] punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons. [Citation.] [Citation.] (Ibid.)

The third prong calls for comparison of the California punishment with punishment for the same crimes in other states. 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. [Citation.] (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) We conclude that appellants sentence does not constitute cruel or unusual punishment under the California Constitution.

Further, contrary to appellants claim, his sentence is not grossly disproportionate to his crimes and does not violate the Eighth Amendment of the federal Constitution. (U.S. Const., 8th Amend.; Ewing v. California (2003) 538 U.S 11; Lockyer v. Andrade (2003) 538 U.S. 63; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] He admitted that he was convicted on May 20, 1994 and February 25, 1998 of first degree residential burglary (Pen. Code, 459).

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

[3] When the court reminded counsel that in one count the female victim ran into the bedroom and had to brace her body against the door while he was shoving on it, counsel acknowledged that was true but stated the bottom line was that appellant had not done any harm to her.

[4] The jury deadlocked on a third count and a mistrial was declared on this count as well as four other counts.

[5] The probation report reflects that on March 16, 1994, appellant was convicted of violating Penal Code section 484, subdivision (a), theft of personal property, a misdemeanor. On May 20, 1994, he was convicted of first degree burglary and sentenced to prison for two years. On February 25, 1998, he was convicted of first degree burglary and sentenced to prison for 11 years. At the time he committed the instant offense he was on parole.

[6] Respondent argues appellant was convicted of assault in 1994. According to the probation report, there is a misdemeanor assault conviction, but the report also states that a positive identification has not been made because fingerprints were not received for the entries. Use of this information is the receivers responsibility. We have not considered this conviction in evaluating appellants record.