P. v. Howse

Filed 4/7/10 P. v. Howse 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

Defendant Richard Howse pled no contest to possession of methamphetamine and admitted a strike prior (1989 first degree burglary). Another strike prior was dismissed in the interests of justice. The prosecutor noted that an alleged third strike prior might not qualify as a strike prior. The parties agreed that defendant could file a motion pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 and that defendant was not eligible for Proposition 36 probation.

After denying defendants Romero motion, the court sentenced defendant to state prison for 32 months, that is, the low term of 16 months, doubled for the strike prior.

Defendant appeals. The court denied defendants request for a certificate of probable cause. He contends the trial court abused its discretion in denying his Romero motion and that his sentence amounts to cruel and unusual punishment under the federal and state Constitutions. We affirm.

FACTS

About 4:00 a.m. on May 10, 2008, officers investigating a report of two suspicious cars in a school parking lot, found three people in one car and two people (defendant and Deanna Frank) in the second car. A search of the first car revealed a plastic bag and a glass pipe, both with methamphetamine. A search of the second car, which belonged to defendant, revealed an electronic scale and a plastic bag with 0.28 grams of methamphetamine. Officers found two plastic bags of methamphetamine totaling 4.27 grams and a glass pipe with 0.08 grams of methamphetamine on Frank. In Franks purse, officers found 0.45 grams of methamphetamine.

DISCUSSION

I

The Romero Motion

Defendant contends the trial courts denial of his Romero motion constituted an abuse of discretion.

When a trial court denies a Romero request, we review this decision for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

The three strikes law establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court conclud[es] that an exception to the scheme should be made because, for articulable reasons which can stand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme. [Citation.] (People v. Carmony, supra, 33 Cal.4th at p. 377.) In making this determination, the court considers the current offense, prior convictions, and defendants background. (Ibid.)

The probation report recounted the 58-year-old defendants criminal history: as a juvenile, grand theft auto in 1966; as an adult, first degree robbery in 1970, receiving stolen property in 1972, failure to appear on 1972, second degree burglary in 1975, resisting arrest, a misdemeanor, in 1987, first degree burglary in 1989, infliction of corporal injury upon a spouse in 1996, possession of a controlled substance in 1996, receiving stolen property in 1996, and attempted battery with serious bodily injury in 2004. Defendant has been to prison four times. He has several violations of parole. Defendant admitted he is a heavy user of methamphetamine but denied using other substances in the past 15 to 20 years. Defendant had never sought a treatment program and did not actively participate in Narcotics Anonymous. Defendant was unemployed but had applied for disability. Although describing his physical health as fair, he claimed to take medication for high blood pressure, liver disease, prostate, and sexual dysfunction.

Because defendant possessed a small amount of methamphetamine, the probation officer recommended the low term, doubled.

Defendants Romero motion argued that his strike prior (1989 first degree burglary) occurred before the three strikes law so he was unaware of the consequences of pleading guilty. With respect to the burglary, defendant claimed that he was addicted to drugs, was homeless, and had not eaten for days, so he broke into his mothers home where he had previously been living, made something to eat, and took a shower. Defendants sister called the police after defendant left but defendant returned and turned himself in, hoping for help with his drug problem.

Defendant offered explanations for several other convictions. He was convicted in 1996 of infliction of corporal injury based on a mutual fight with his then and now girlfriend. He claimed the plea agreement required his plea to two other offenses, receiving stolen property and possession of a controlled substance.

He claimed the attempted battery offense in 2004 occurred as a result of him being attacked by three white youths who were accusing [defendant] of hitting a white wom[a]n . . . .

With respect to the current offense, defendant claimed he was high and had battled his addiction with some victories and some defeats. He stated that he was waiting for acceptance into an in-patient treatment center and had arranged for funding. Defendant argued that the court should consider striking the strike prior to avoid an unjust sentence based on the small amount of methamphetamine and his drug addiction and health problems, many of which could not or would not be treated in prison . . . . including: thyroid problems, severe shoulder pain, liver cirrhosis among other ailments.

The People responded that the strike should not be stricken because defendant was not youthful; has a history as a drug abuser despite several ailments; lacked any prospects at employment; failed to take responsibility (based on his claim that the officers had planted the methamphetamine in his vehicle); used drugs in a home with his child; had convictions since the 1989 strike, and the prior strike for first degree burglary was a violent or serious offense (the facts of which claimed by defendant had not been confirmed or denied). Defense counsel claimed that defendant had spent 180 days in jail for the strike prior.

The court noted defendants very long history which included three strike priors and that two strike prior allegations had already been dismissed as a result of the plea. Citing defendants record in its entirety, et cetera, the court denied defendants Romero motion.

Based on defendants current offense, his numerous prior convictions, and his background which reflects no prospects for his future, the record supports the trial courts determination that defendant should not be treated as though he fell outside the three strikes law. His argument that he should be granted leniency because he was willing to seek treatment ignores that he could have resolved his drug problem long before the current offense but had never even tried. (See People v. Reyes (1987) 195 Cal.App.3d 957, 963 [when a defendant has a substance abuse problem that was a substantial factor in the commission of a crime and has failed to deal with the problem despite repeated opportunities, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence].) Defendants claim that the trial court relied on his recidivism alone in denying his Romero motion is belied by the record which reflects that the court cited defendants record in its entirety. . . . Contrary to defendants claim otherwise, the record fairly read means that the trial court considered various sentencing factors, including defendants current and prior convictions, the circumstances underlying the same, his social circumstances at the time of the offenses, defendants background, character and prospects, and both parties pleadings and arguments about the same. Noting that the prosecutors opposition pleading asserted that defendant tested positive for several drugs when he was arrested for the current offense, defendant argues that there was no evidence that he was under the influence of drugs or alcohol when operating his motor vehicle on the day of his arrest in this case. Defendant ignores the fact that he admitted to the probation officer that he is a heavy user of methamphetamine and admitted in his Romero motion that he was high the day of his arrest in this case. Defendant has failed to show that the trial court abused its discretion in denying his Romero request.

II

Cruel And Unusual Punishment

Defendant claims his 32-month sentence was disproportionate in violation of the Eighth Amendment to the Federal Constitution and article I, section 17, of the California Constitution. Although conceding that his sentence does not appear to be inherently disproportionate, nevertheless defendant argues his sentence is unjust because he has many and serious medical problems including thyroid problems, sever shoulder pain, and liver cirrhosis, for which the Department of Corrections and Rehabilitation is simply not able (or perhaps not willing) to treat. . . .

Defendants argument about the Department of Corrections and Rehabilitations willingness to provide medical treatment for prisoners is not supported by any evidence in the record and is not relevant to a challenge to the length of confinement; rather it challenges the conditions of confinement. In any event, defendant has failed to demonstrate that his sentence is unconstitutional.

The Eighth Amendments proscription of cruel and unusual punishments sets forth a narrow proportionality principle which applies to noncapital sentences and forbids only extreme sentences that are grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 20, 23 [155 L.Ed.2d 108, 117, 119] (lead opn. of OConnor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997, 1001 [115 L.Ed.2d 836, 865-866, 869].)

Ewing v. California, supra, 538 U.S. 11 [155 L.Ed.2d 108] rejected an Eighth Amendment challenge to a 25-year-to-life three strikes sentence, noting that [r]ecidivism has long been recognized as a legitimate basis for increased punishment. (Id. at p. 25 [155 L.Ed.2d at p. 120].) Based on the defendants lengthy criminal history, Ewing concluded that the defendants punishment was not disproportionate, notwithstanding that his current felony was relatively minor, and thus did not violate the Eighth Amendment. (Id. at pp. 28-31 [155 L.Ed.2d at pp. 122-123].)

Here, defendants lengthy criminal history supports the conclusion that his relatively short sentence is not grossly disproportionate.

Under the cruel and unusual punishment proscription under the California Constitution, we consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society; compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses; and compare the challenged penalty with the punishments prescribed for the same offense in other jurisdictions . . . (In re Lynch (1972) 8 Cal.3d 410, 424-427, italics omitted) to determine whether the punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity (id. at p. 424).

Defendant has not bothered to discuss the criteria, nor shall we. Defendant was mandatorily ineligible for probation based on his strike prior and presumptively ineligible because he had more than two prior felony convictions. The court imposed the low term, doubled. This challenge is frivolous.

III

Presentence Credits

The recent amendments to Penal Code section 4019 do not operate to modify defendants entitlement to credit, as he was required to register as a sex offender, committed for a serious or violent felony, and/or had a prior conviction(s) for a serious or violent felony. (Pen. Code, 4019, subds. (b)(1), (2) & (c)(1), (2); Stats. 2009, 3d Ex. Sess., ch. 28, 50.)

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND , P. J.

SIMS , J.

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