P. v. Alva

Filed 7/17/07 P. v. Alva CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch and Barry Carlton, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of one count of first degree burglary. (Count 1 ‑‑ Pen. Code,  459).^[1] After a bifurcated trial, the jury also found true allegations that defendant had suffered eight prior strike convictions ( 667, subds. (b)-(i), 1170.12 subds. (a)-(d)), two of which qualified as serious felonies ( 667, subd. (a)(1)), and a ninth prior conviction for which he had served a prison term and failed to remain free from custody for five years ( 667.5, subd. (b)). Prior to sentencing, defendant unsuccessfully moved to dismiss his prior strike convictions. The court sentenced defendant to an indeterminate term of 36 years to life, consisting of a 25-year-to-life term on the burglary conviction; two consecutive five-year terms for the prior serious felony convictions; and one additional consecutive year for the prior prison term. On appeal, defendant contends the trial court abused its discretion in denying his motion to strike his prior strike convictions and, in the alternative, that his sentence is violative of the California and United States Constitutional prohibitions against cruel and unusual punishment. We find defendants claims without merit and, therefore, affirm the judgment in its entirety.

I. FACTUAL AND PROCEDURAL HISTORY

After securing his home, Walter Scheffler left for work on the morning of January 14, 2005, between 8:00 and 9:00 a.m. Before leaving, he ensured the backyard gate was closed because his dogs were in the backyard. He returned home around noon and noticed the gate was open. He also observed a red car parked in front of his home, which he found unusual in that no one usually parked in front of his home. He went to the gate to call his dogs, but they did not respond. He then entered his home through the locked front door and saw defendant come out of his bedroom, walk through the kitchen, the hallway, and out the back door, all the while carrying a pillowcase. Scheffler chased defendant out the back door, around the backyard, through the gate, and into the front yard of the house, whereupon defendant got into the red car and started it.

Scheffler jumped into the passenger side window of the car as defendant drove away. Defendant drove the vehicle approximately 40 miles per hour on the 25 miles per hour residential street. Defendant verbally threatened to kill both himself and Scheffler. Defendant reached into his pocket to retrieve what Scheffler believed to be a weapon. Scheffler then removed the key from the ignition, causing the car to stall; he held a box cutter to defendants throat. He then threw the keys out the window. Defendant and Scheffler began fighting over the pillowcase, which contained approximately $110 in Schefflers loose change and $2,000 to $3,000 worth of his collector coins. Scheffler managed to obtain control over the pillowcase, picked up defendants keys, and walked back to his home. Defendant followed, whereupon Scheffler tackled him on the front lawn with defendant finally exclaiming that he gave up. While Scheffler went to call the police, defendant ran off.

Defendant arrived out of breathe at the nearby home of his niece at approximately 12:20 p.m. She noted that his car was down the street towards the victims home. While the deputy sheriff who had arrived was talking with Scheffler, defendants two juvenile nieces approached the deputy and stated that the red car, which defendant had been driving, was their grandfathers and that it had been stolen from them. Apparently, their uncle had run into the home, told them he had been robbed, and induced them to lie in reporting the car as stolen. The deputy found defendant hiding in a shower at the nieces home. A search of the vehicle resulted in the discovery of a syringe half-full of heroin, which defendant admitted was his.

The People charged defendant with one count of burglary (Pen. Code,  459) with an allegation that it constituted a serious felony (Pen. Code,  1192.7, subd. (c), 667.5, subd. (c)) and one count of possession of heroin (Health & Saf. Code,  11350, subd. (a)). The People further alleged defendant had eight prior convictions for serious or violent felonies as to counts 1 and 2 (Pen. Code,  1170.12, subds. (a)-(d), 667, subds. (b)-(i)), two prior serious felony convictions as to count 1 (Pen. Code,  667, subd. (a)(1)), and alleged, as to both counts, a prior prison term (Pen. Code,  667.5, subd. (b)). On the Peoples motion, the court dismissed count 2 and all enhancements relating thereto. Prior to trial, defendant moved the court to strike the allegations of his prior serious or violent felony convictions. The trial court elected to postpone hearing defendants motion until sentencing, after which it was ultimately denied.

II. DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Electing Not to Strike Seven of Defendants Prior Strike Convictions

Defendant contends the trial court erred in failing to strike all seven of his prior strike convictions arising from his seven-count conviction in 1986. He essentially enumerates three bases for this contention: (1) seven of defendants prior burglary convictions arose from a single case in 1986 wherein the multiple convictions were closely connected in that they occurred over one brief period of time; (2) defendants criminal conduct has been the result of his heroin addiction for which governmental entities have failed to provide appropriate treatment; and (3) defendant is not a career criminal and is, therefore, outside the spirit of the Three Strikes law.

[A] courts failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. (Id. at p. 376.) In the absence of such a showing, the trial court is presumed to have acted correctly. (Id. at pp. 376-377.) The appellate court may not substitute its judgment for that of the trial court when determining whether the courts decision to strike the prior was proper. (Id. at p. 377.) [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. [Citation.] (Ibid.) Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. (Id. at p. 378.) [T]he circumstances must be extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the . . . scheme . . . . (Ibid.)

Defendant initially relies on People v. Benson (1998) 18 Cal.4th 24 (Benson) and People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos), for the proposition that when multiple convictions arise out of a single case the interests of justice [can be] furthered . . . only by dismissing all prior strike convictions occurring in that same case. In Benson, althoughthe Supreme Court ruled that a prior serious felony conviction qualified as a prior strike conviction even though sentence on the conviction had been stayed under section 654, the court noted in footnote 8: Because the proper exercise of a trial courts discretion under section 1385 necessarily relates to the circumstances of a particular defendants current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected‑‑for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct‑‑that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors. (Benson, supra, at p. 36, fn. 8.) (This sentiment has been more recently reiterated, in dicta, in both People v. Carmony, supra, 33 Cal.4th at p. 374 and People v. Sanchez (2001) 24 Cal.4th 983, 993.) In Burgos, following the reasoning of footnote 8 in Benson, the court found the trial court abused its discretion in not striking a prior strike conviction where both convictions, attempted carjacking and attempted robbery, arose from the same act. (Burgos, supra, at p. 1213.)

Initially, in relying on Benson, defendant ignores the portion wherein the court indicated it was distinguishing the above noted scenario from circumstances where multiple acts [were] committed in an indivisible course of conduct. . . . (Benson, supra, 18 Cal.4th at p. 36, fn. 8.) Additionally, defendant points to nothing in the present record which would suggest all seven convictions were the product of one act. Indeed, it is noted in the probation officers packet for the 1986 convictions, admitted into evidence in this case as part of exhibit 13 to prove his prior convictions, that defendants seven convictions for burglary are derived from seven separate acts of burglary. Defendants 1986 convictions were obtained from seven instances of burglary of five separate homes, one home on three separate occasions, over a three-week period. Thus, defendants seven prior convictions in 1986 did not derive from a single criminal act and the trial court did not abuse its discretion in denying his request to strike the prior convictions on that basis. Moreover, the Burgos court found that the trial court had erred in failing to strike one prior conviction. (Burgossupra, 117 Cal.App.4th at p. 1211.)^[2] Here, defendant contends not one, not even all but one, but allseven of his prior convictions from the 1986 case should have been stricken. Thus, the instant case is factually distinguishable from Burgos.

Defendant also notes that his life-long drug addiction is a mitigating factor which should have been considered when determining whether to strike his prior convictions. Certainly defendants heroin addiction was early in coming and long in execution. Defendant and other witnesses testified he became involved with heroin at the age of 17 and was still entangled in its web when arrested in the instant case. At least one prior trial court judge noted that defendants problems are heroin-related. Moreover, defendant had made at least some strides towards ameliorating his addiction. Defendants friends and family had previously sought help for him in a drug program at the church where he had been involved for nine months after his release from prison in 1994. Defendant requested, and a previous trial court intimated its preference for, his assignment to the California Rehabilitation Center, where defendant could get the help he needed; however, due to extenuating circumstances, he was never sent there. Defendant never received any drug treatment during any of his lengthy periods of incarceration. At least a couple weeks prior to his arrest in the current incident, defendant had sought help from Cedar House Rehabilitation Center (Cedar House).

Ultimately, however, defendants endeavors to resolve his substance abuse were, to be clich, too few and far between and too little, too late. While drug addiction may be considered a mitigating factor for purposes of determining whether to strike prior convictions, it may lose that distinction when a defendant consistently fails to make any effort at rehabilitation. (People v. Williams (1998) 17 Cal.4th 148, 155, 163; see also People v. Gaston (1999) 74 Cal.App.4th 310, 322.) As the trial court here noted, all defendants attempts to get help were half-hearted: [Y]ou cannot blame the entities that are out there offering to treat. [] If one wishes to disentangle themselves from substance abuse . . . that decision first must be made by them. After his 1986 convictions, in response to the probation officers query as to why defendant had never gotten any help with his problem, defendant replied that he did not want the hassle of a methadone clinic program. While defendants friends and family made arrangements to get him into a church drug program after his release from prison in 1994, defendant never even attended one meeting. While defendant sought help from Cedar House a few weeks prior to his arrest in the current matter, he had been released from prison more than five months earlier and never explained why he had not sought help sooner. Defendant testified, and the letter from Cedar House substantiated, that he had to be cleared by his probation officer and doctor prior to admittance; however, he never testified if or how he followed up to ensure admission. Defendants solitary phone call to Cedar House was the only time he himself had ever sought help for his drug problem while he was free from custody. Likewise, he had not returned to church since his release. Moreover, defendant had been in prison for nearly 22 of the 24 years preceding his arrest in this matter. As defendants father noted, you just dont come out of prison using drugs. Thus, in only two of the preceding 24 years had defendant been able to use drugs; yet, without fail, whenever he had the opportunity, he always returned to its use. Therefore, the trial court was well within its discretion in determining that defendant was an irremediable drug user with no real inclination to stop. Hence, its disinclination to strike defendants priors on that basis was well within reason.

Finally, defendant notes he is simply not within the spirit of the Three Strikes law, such that someone such as he, who is a mere nuisance or annoyance, should be removed from society indefinitely. We think that defendant is much more than a minor irritant, but rather, constitutes a serious danger to society such that the trial court correctly refused to exercise its discretion in striking his priors. A simple review of defendants criminal record suffices to show that he is precisely the type of career criminal the Three Strikes law was designed to proscribe.

Defendant was first arrested for possession of heroin when he was 16 or 17. In 1983, he was charged with burglary (Pen. Code,  459), which was reduced to misdemeanor trespass of a building upon conviction (id.,  602, subd. (i)), for this he received 24 months of probation and four days in jail. On July 31, 1984, while still on probation for the former offense, defendant was charged with theft. (Id.,  484.) That charge was subsequently reduced to misdemeanor petty theft (id.,  488) for which he was convicted and sentenced to five days in jail. On October 1, 1984, defendant was charged with burglary (id.,  459) and accessory to burglary (id.,  32). He was convicted on the lesser of accessory and received a 30-day jail term. On November 4, 1984, defendant was charged with petty theft with a prior (id.,  666) and giving false information to a police officer (id.,  148.9). He was convicted of misdemeanor petty theft with a prior (id.,  666) and sentenced to 24 months of probation with 15 days of jail time. On January 27, 1986, while on probation, he was charged with seven counts of first degree residential burglary. As noted above, these charges involved seven separate burglaries of five homes, one of which he struck on three distinct occasions. As part of his plea to all seven counts, the People agreed not to file two additional counts of burglary. The court sentenced defendant to six years in prison. Defendant was paroled on July 26, 1990. Less than a year thereafter, defendant was convicted on June 28, 1991, of first degree residential burglary (id.,  459), receiving stolen property (id.,  496.1), and a parole violation (id.,  3056). In return for defendants plea, the People agreed not to file a prior prison term allegation and the court sentenced him to eight years in prison. Defendant was paroled on August 21, 1994, but police arrested him on December 11, 1995, for possession (Health & Saf. Code,  11377, subd. (a)) and transportation (Health & Saf. Code,  11352) of heroin and cocaine, respectively. Defendant pled guilty to transportation of controlled substances (Health & Saf. Code,  11352) and admitted one strike prior in return for the striking of seven prior strike allegations and the striking of one prior prison term allegation. The court sentenced defendant to 11 years in prison. He was released on parole on July 9, 2004, and committed the instant offense on January 14, 2005. Thus, defendant has engaged in a continuing pattern of criminal conduct. Indeed, many of his crimes were committed while he was still on probation or parole.

We likewise reject the implication that defendants lengthy criminal record is replete solely with innocuous or trivial victimless crimes. Defendant has committed numerous burglaries which, as this trial court, case law, and the Legislature have all recognized, involves a serious violation of the sacrosanct position which the home occupies in our society. (People v. Davis (1998) 18 Cal.4th 712, 720-722.) Moreover, in the instant case, defendant showed no compunction with escalating his crime to violence once he was faced with the possibility of capture. He accelerated his car far beyond the safe and legal speed once Scheffler leapt into the passenger window, vastly increasing the risk of injury. Indeed, he threatened to kill Scheffler. Once the car had become idle due to victims efforts, defendant engaged in a physical altercation with Scheffler over his takings. Thus, rather than simply escaping, defendant determined that retaining his ill-gotten booty surpassed in importance any risk he might further pose the victim. Then, in an effort to remove himself from suspicion, defendant showed no qualms with inducing his teenage nieces to lie to the police. Thus, far from being an idle and minimal threat to society, defendant appears to be precisely the sort of habitual and dangerous criminal the Three Strikes law was aimed at subduing; hence, the trial court acted well within its discretion in determining he was within the spirit of the law.

Here, the trial court was markedly familiar with its discretion to strike some or all of defendants prior strike convictions. Indeed, it stated repeatedly on the record that it was aware it had discretion pursuant to Romero to strike defendants prior convictions and it acknowledged the appropriate standard for that review in Williams. (People v. Superior Court(Romero) (1996) 13 Cal.4th 497; People v. Williams, supra, 17 Cal.4th 148.) It then conducted the appropriate appraisal of the circumstances, considering defendants background, the character of his current crimes, and prospects. As discussed above, all these conditions amply demonstrated that defendant was well within the spirit of the Three Strikes law and that the trial court acted properly in declining to strike his prior convictions.

B. Defendants 36-Year-to-Life Sentence Does Not Constitute Cruel and Unusual Punishment

Defendant contends his 36-year-to-life sentence is disproportionate to his current offense and personal history and, as such, constitutes cruel and unusual punishment under the state and federal Constitutions. (U.S. Const., 8th Amend; Cal. Const., art. I,  17.) We disagree.

The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendants personal responsibility and moral guilt. [Citations.] Article I, section 17 of the California Constitution separately and independently lays down the same prohibition. [Citations.] (People v. Lucero (2000) 23 Cal.4th 692, 739.) If the penalty imposed is grossly disproportionate to the defendants individual culpability [citation], so that the punishment shocks the conscience and offends fundamental notions of human dignity [citation], [we] must invalidate the sentence as unconstitutional. (Id. at pp. 739-740.) A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual. (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)

When reviewing a claim of disproprotionality or cruel or unusual punishment under the state Constitution, we examine the nature of the offense and offender, compare the punishment with the penalty for more serious crimes in the same jurisdiction, and measure the punishment to the penalty for the same offense in different jurisdictions. (People v. Dennis (1998) 17 Cal.4th 468, 511; In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch).) Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commission of the current offenses, including the defendants motive, the manner of commission of the crimes, the extent of the defendants involvement, the consequences of his acts, and his individual culpability, including factors such as the defendants age, prior criminality, personal characteristics, and state of mind. (People v. Lucero, supra, 23 Cal.4th at p. 739; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)

Defendant argues his current offense of burglary, while serious, did not involve any harm to the victim and that the victim retrieved his property. He also notes he has been addicted to heroin all his adult life, has never received appropriate treatment for his dependence, and that all his criminal history is a result of attempts to feed his habit. He downplays the significance of his criminal history, noting only those two cases in 1986 and 1991 which resulted in enhancements in this case. However, he ignores the numerous separate counts contained therein, and the copious other convictions he has suffered.

It is significant that defendants 36-year-to-life sentence was largely based on his recidivism. Defendant received the 25-year-to-life term for his burglary conviction under the Three Strikes law based on his prior strike convictions. ( 667, subds. (b)-(i).) In addition, two consecutive five-year terms were imposed based on defendants two prior serious felony convictions. ( 667, subd. (a)(1).) Furthermore, defendant received an additional year for his prior prison term. ( 667.5, subd. (b).) It is notable defendant could have received an even longer term had the People determined to proceed, and defendant been convicted, on the count 2 offense of possession of heroin and the enhancements thereto as originally alleged in the amended information. Likewise, the People could have alleged an additional prior prison term, but chose not to do so. [A] defendants history of recidivism, which is part of the nature of the offense and the offender, justifies harsh punishment. (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)

As noted above, defendants criminal history is extensive and continuing. While his prior criminality and the current offenses do not indicate he has a propensity for extreme violence, the circumstances of the current incident do not exactly resonant with pacifism or passivity. Likewise, his recurrent criminality indicates he has failed to learn from his numerous past experiences with the law. Defendant knew he was facing a life sentence for his current offenses when he was apprehended. Yet, he still committed the offense. In view of his failure to learn from his past offenses, his 36-year-to-life sentence is not disproportionate to his personal responsibility. Nor does the sentence shock the conscious or offend fundamental notions of human dignity. (People v. Lucero, supra, 23 Cal.4th at p. 740.)

The second prong of the Lynch analysis involves a comparison of the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. [Citation.] (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) The third prong of Lynch calls for comparison of the California punishment with punishment for the same crimes in other states. (People v. Romero, supra, at p. 1433.) Defendant has not met his burden of proof on either of these prongs. (Ibid. [second prong inapposite to three strikes sentencing; third prong not satisfied merely because Californias sentencing scheme is harsher than others].) Indeed, although defendants sentence may effectively constitute a life sentence for him, it is not disproportionate to his culpability. (See Lockyer v. Andrade (2003) 538 U.S. 63, 73-74 [123 S.Ct. 1166, 155 L.Ed.2d 144] [two consecutive terms of 25 years to life for third strike conviction involving two thefts of videotapes not cruel and unusual punishment]; Ewing v. California (2003) 538 U.S. 11, 21 [123 S.Ct. 1179, 155 L.Ed.2d 108] [25-year-to-life sentence for theft of three golf clubs for habitual criminal not violative of the Eighth Amendment].)

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Gaut

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The Burgos court did not base its conclusion solely on the fact that the two prior strike convictions were based on a single act. The court observed that the defendants current offenses were not under the circumstances, the worst of crimes, and that his criminal history, aside from his current convictions and prior strike conviction, consisted of misdemeanors and one felony that did not qualify as a prior strike conviction. (Burgos, supra, 117 Cal.App.4th at p. 1216.)