P. v. Rusconi

Filed 6/15/06 P. v. Rusconi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lisa A. Foster, Judge. Affirmed.

In superior court case number SCD175729, a jury convicted Monica Rusconi of two counts of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and two counts of driving with a blood/alcohol level of .08 percent or higher (Veh. Code, § 23152, subd. (b)). In a bifurcated hearing, Rusconi admitted two prior convictions of gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(3))^[1] that were alleged as prior strikes (Pen. Code, § 667, subds. (b)-(i)). In case No. SCD186156, Rusconi entered a guilty plea for failing to appear in court as ordered. (§ 1320.5.) The court denied a motion to dismiss the two prior strikes in case No. SCD175729, struck one prior strike in case No. SCD186156, and sentenced Rusconi to prison for 29 years to life: 25 years to life on one conviction of felony driving under the influence of alcohol with two prior strikes with a consecutive four years for failing to appear with one prior strike (double one-third the two-year middle term). It imposed a concurrent term on the second driving under the influence conviction and stayed sentence on the two convictions of driving with a blood/alcohol level exceeding .08 percent. (§ 654.)

Rusconi contends the trial court abused its discretion in refusing to strike one of the prior strikes in case No. SCD175729 and that the sentence is cruel and unusual punishment.

FACTS

Case No. SCD175729

On January 29, 2003, at approximately 5:00 p.m. Rusconi, driving a Corvette, rear-ended a car driven by Michelle Allen. Allen's vehicle sustained damage estimated to be $900. Allen's neck hurt but she did not seek medical treatment. The drivers got out of their respective vehicles and Rusconi offered to settle the matter for money. Allen rejected the offer and said she wanted to call the police. Rusconi did not comply with Allen's request for her name and the name of her insurer. Rusconi returned to her car and sped off in reverse, going "real fast" and swerving. Allen believed Rusconi was going to lose control of the Corvette. Allen was able to get license plate number of the Corvette and called the police. Rusconi drove back to the scene of the collision around 5:30 p.m. Officer William Day testified that Rusconi's eyes were bloodshot, she was talkative, had an unsteady gait, and smelled of alcohol. Officer Eric Hoppe testified that Rusconi "staggered" from her car, used her hand to balance herself, and had a hard time walking. Rusconi told Officer Hoppe that preexisting injuries prevented her from performing the Gaze Nystagmus test or the alphabet/balance field sobriety tests. Around 6:00 p.m. officers attempted to administer a breath test. After Rusconi did not comply four times with their request to blow into a tube, they arrested her. At 8:11 p.m., Rusconi was administered a blood test at the hospital. The test revealed Rusconi's blood/alcohol level to be .10 percent. Based on dissipation of alcohol from the blood over time, this reflects a blood/alcohol level at 5:00 p.m. of approximately .17 percent and a blood/alcohol level of approximately .16 percent at 5:30 p.m.

Case No. SCD186156

On May 19, 2004, Rusconi failed to appear in court as ordered. A warrant for her arrest was issued.

Prior Criminal History

Rusconi was 19 years old when she was first convicted of driving under the influence. (Former Veh. Code, § 23102, subd. (a).) Later, while still 19 years old, she was convicted a second time of driving under the influence and possessing a controlled substance. (Heath & Saf. Code, § 11377, subd. (a).) Rusconi had a blood/alcohol level of .25 percent. When she was 20 years old, she was convicted of driving under the influence with two prior driving under the influence convictions. She had a blood/alcohol level of .22 percent. When she was 22 years old, she was convicted of driving with a suspended driver's license. (Veh. Code, § 14601.) When she was 24 years old, she was convicted of resisting arrest. (§ 148.) When she was 25 years old, she was convicted of two counts of vehicular manslaughter (§ 192, subd. (c)(3)), and hit and run (Veh. Code, § 20001). A urinalysis revealed the presence of methamphetamine, cocaine, and Phenobarbital in her blood. When she was 29 years old, she was convicted of possessing drugs in prison. (§ 4573.6.) When she was 36 years old, she was convicted of driving without a valid driver's license. (Veh. Code, § 12500, subd. (a).) While still 36 years old, she was convicted of driving under the influence. She had a blood/alcohol level of .30 percent. In the present case, she was convicted of two counts of driving under the influence of alcohol.

DISCUSSION

Rusconi argues the trial court abused its discretion in denying her request to strike one of the strikes on the driving under the influence convictions because she does not fall within the spirit of the three strikes laws and that the punishment is cruel and unusual.

Abuse of Discretion

A trial court is authorized in its discretion to dismiss a prior strike allegation in the interests of justice under section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In ruling whether to dismiss a prior strike allegation the court must determine whether, considering the nature and circumstances of the current offense and prior strikes, the defendant may be deemed outside the spirit of the three strikes law and should be treated as though she had not incurred one or more prior strikes. (People v. Williams (1998) 17 Cal.4th 148, 162-163 (Williams).) The trial court's decision to dismiss, or not to dismiss, a prior strike allegation is reviewable on appeal under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-375.) Under this standard, the defendant has the burden of proving the trial court's determination was arbitrary or irrational. (People v. Superior Court (Alverez) (1997) 14 Cal.4th 968, 977-978.)

In exercising its discretion to dismiss one or more prior strike allegations in the interests of justice under section 1385, the trial court "must consider whether, in light of the nature and circumstances of [her] present felonies and prior serious and/or violent felony convictions, and the particulars of [her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though [she] had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes . . . ." (Williams, supra, 17 Cal.4th at p. 161.)

Here, the trial court declined to dismiss any prior strike allegation, stating:

"I have considered sentencing in this case carefully and seriously. The presumptive sentence, as you know is as probation has recommended. That is, two consecutive 25-to-life sentences unless the court grants the defense motion to strike one, or both, of the strikes in one, or both cases.

"The standard for whether the court will strike a strike is whether considering the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions together with the defendant's background, character and prospects, Ms. Rusconi may be deemed outside the three strikes scheme spirit in whole or part."

The court then reviewed Rusconi's criminal history and went on to say:

"And I agree with you [defense counsel], Ms. Rusconi has a problem with drugs and alcohol and a problem getting into cars when she is under the influence of drugs and alcohol. But this is a problem that has been going on for 30 years. And despite having killed two people, serving a substantial amount of time in prison and in jail, despite causing incalculable damage to people, vehicles, property and herself, Ms. Rusconi has not stopped drinking, she has not stopped using drugs and she has not stopped driving while under the influence of alcohol or drugs, or both."

The first question Rusconi presents is whether, at the time of sentencing, she came within the "spirit" of the three strikes law as that term was defined by the court in Williams, supra, 17 Cal.4th 148. In evaluating the trial court's decision, we must look not only at the conduct underlying the current felony conviction, but must also consider the defendant's recidivist history at the time of the new offense.

Rusconi has been convicted of two counts of vehicular manslaughter, a serious felony. While in prison on those offenses, Rusconi was convicted of possessing a controlled substance in prison. After she was released from prison, Rusconi was again convicted of driving under the influence in 1996 and again in the present case in 2004, with a blood alcohol almost twice the legal limit and rear-ended Ms. Allen's vehicle that was stopped at a yield right of way sign. Her conduct posed a risk of injury not only to Ms. Allen, but also to all motorists and pedestrians on the streets she drove upon or crossed. Perhaps more importantly, at the time of the driving in this case, Rusconi having already killed two people while driving under the influence of alcohol or drugs and served a prison term, appeared to have learned nothing from her prior convictions and incarcerations. Thus, she represented the type of person targeted by the three strikes law, the persistent recidivist who continues to put the public at risk by continued criminal conduct. The trial court acted well within its discretion when it declined to strike any of the serious felony prior convictions and imposed the legislatively authorized sentence. We believe the trial court's findings that Rusconi came fully within the spirit of the three strikes law is supported by the record on appeal.

Cruel and Unusual Punishment

Rusconi contends her 29-year-to-life sentence is disproportionate to her crimes and shocks the conscience and therefore violates the provisions against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. We reject this argument, and find the sentence imposed in this case does not constitute cruel and unusual punishment.

To the extent Rusconi relies on the California Constitution, her challenge must be considered in light of In re Lynch (1972) 8 Cal.3d 410 (Lynch),^[2] and People v. Dillon (1983) 34 Cal.3d 441 (Dillon).^[3] Rusconi does not directly challenge the general facial constitutionality of the three strikes law, but argues its application to her is unconstitutional. She thus urges this court to reverse and remand the case for resentencing. Rusconi apparently does not accept that her punishment, under scrutiny here, is the result of her current offenses of driving under the influence of alcohol after having been convicted of two counts of vehicular manslaughter.

As to California's separate constitutional prohibition against cruel and unusual punishment, we note the power to define crimes and prescribe punishment is a legislative function and we may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate that constitutional prohibition. (Lynch, supra, 8 Cal.3d at pp. 423-424.) Ultimately, however, the test whether a specific punishment is cruel and unusual is whether it is "'out of all proportion to the offense . . .' [citation] so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinson v. California (1962) 370 U.S. 660, 676, citing Lynch, supra, 8 Cal.3d at p. 424.)

As we noted in In re DeBeque, the analysis developed in Lynch, supra, 8 Cal.3d 410 and Dillon, supra, 34 Cal.3d 441, merely provides guidelines for determining whether a given punishment is cruel and unusual and the importance of each criteria depends on the facts of the specific case. (In re DeBeque, supra, 212 Cal.App.3d at p. 249.) Although determinations whether a punishment is cruel and unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g., Dillon, supra, 34 Cal.3d at pp. 479, 482-488; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311), the defendant has the burden of establishing her punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254-255.) Successful challenges to proportionality are an "exquisite rarity." (Weddle, supra, 1 Cal.App.4th at p. 1196.)

Here, Rusconi has not met that burden. As noted, ante, Rusconi's punishment is controlled in the first instance by her committing the current offense while having previously been convicted of two counts of vehicular manslaughter. That the Legislature saw it necessary to enact such statutes and sentencing schemes to impose harsher punishment for recidivist offenders like Rusconi does not shock our conscience.

Rusconi's prior convictions coupled with her present conduct qualified her for punishment under the three strikes law. We believe mandatory imposition of the legislatively required term was proper absent a showing Rusconi falls outside the spirit of the three strikes law, which she does not.

Even if we review the matter by analyzing the factors under the first prong of Lynch, supra, 8 Cal.3d 410 (nature of the offense and/or offender), as refined in Dillon, supra, 34 Cal.3d 441, we reach the same conclusion that the total 29-year-to-life term imposed does not constitute cruel and unusual punishment. Unlike the youthful 17-year-old first-time offender in Dillon, Rusconi was 43 years old at the time she committed the current offense and had served a prior prison term before the current conduct.

Further, in light of the holdings in Harmelin v. Michigan (1991) 501 U.S. 957, Rummell v. Estelle (1980) 445 U.S. 263, 284-285, and the recent United States Supreme Court companion cases of Ewing v. California (2003) 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63, which held lengthy indeterminate life sentences imposed under California's three strikes law for recidivist criminals did not violate the Eighth Amendment, any reliance in this case upon the federal prohibition of cruel and unusual punishment would likewise be unsuccessful. As already noted, Rusconi suffered two prior serious felony convictions before the offense in this case and had served two prison terms.

Given all the relevant considerations, the fact that Rusconi will serve 29 years to life for her most recent felony conviction simply does not shock the conscience or offend concepts of human dignity. We thus conclude Rusconi has failed to establish her sentence is so disproportionate to her "crime," which includes her recidivist behavior, and that the indeterminate term imposed for that crime does not violate the constitutional prohibitions against cruel and/or unusual punishment.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Apartment Manager Attorneys.

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

^[2] Lynch applied a three-pronged approach to determine whether a particular punishment is disproportionate to the offense for which it is imposed. (Lynch, supra, 8 Cal.3d at pp. 429-438.) Under the first prong, the California Supreme Court examined the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Id. at p. 425.) Second, the court compared the challenged punishment with that prescribed for more serious crimes in the same jurisdiction. (Id. at p. 426.) Finally, the challenged punishment was compared with punishments for the same offense in other jurisdictions. (Id. at p. 427.) After its analysis, the court held an indeterminate sentence of one year to life for recidivists who commit indecent exposure under section 314 was void as cruel and unusual punishment. (Lynch, supra, 8 Cal.3d at p. 439.)

^[3] In Dillon the California Supreme Court reaffirmed Lynch and concluded that under the facts of that case, the life imprisonment of a 17-year-old defendant for first degree murder based on a felony-murder theory violated California's constitutional prohibition against cruel and unusual punishment. (Dillon, supra, 34 Cal.3d at pp. 450-452, 477, 482-483, 489.) The court in so deciding refined the first Lynch prong, stating trial and reviewing courts should examine "not only the offense in the abstract . . . but also 'the facts of the crime in question.' [Citation.]" (Id. at p. 479.) Courts should consider "the totality of the circumstances" including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts. (Ibid.) With respect to the nature of the offender, a court should ask whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)