P. v. Moreno

Filed 3/6/06 P. v. Moreno CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Raul Shawn Moreno appeals from the judgment entered after he pleaded guilty to first degree burglary and admitted prior strike and serious felony enhancements. He now claims his 35-years-to-life sentence is cruel and unusual punishment under both the federal and state constitutions. He also asserts the trial court abused its discretion in failing to dismiss his two prior strike convictions.

PROCEDURAL BACKGROUND

On December 1, 2004, defendant pleaded guilty as charged to first degree burglary. (Pen. Code, §§ 459, 460, subd. (a).) He also admitted that he had suffered two prior strike convictions and two prior serious felony convictions. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667, subd. (a).)

Defendant then filed a written request to dismiss his prior strike convictions. On March 3, 2005, the trial court denied defendant's request to dismiss the prior strikes, denied probation, and imposed a prison term of 35 years to life.

FACTUAL BACKGROUND

I. Current Offense

On March 25, 2004, about 8:20 a.m., Sung Hee Kwon returned home from work to retrieve something he had forgotten. When he went inside his home, he heard a noise and then saw defendant with a black duffel bag. He realized defendant was burglarizing his home and tried to grab him. Kwon and defendant physically struggled and eventually crashed into a window, breaking the glass. Kwon put defendant in a headlock and forced him out into the front yard. Kwon's coworker, who was waiting in his car, called the police. A neighbor helped Kwon hold defendant on the ground until the police arrived. When they arrived, the police found defendant bleeding from a cut on his forehead. Kwon's shirt had been torn off in the struggle and he was covered with defendant's blood. The police determined that defendant had entered the home through a bathroom window. In the duffel bag were five pairs of jeans, a Sony playstation, six video games, one DVD movie and some jewelry, with an estimated total value of $1,000.

II. Prior Strike Convictions

In 1993, when defendant was 21 years old, he and a juvenile went into an open, unlocked garage to steal a bicycle. The homeowner entered the garage, the juvenile rode away on the bike, and defendant ran down the street. The homeowner and several neighbors chased and caught defendant, who brandished a knife. Defendant suffered a laceration on his forehead when he was knocked to the ground, and at least one of his pursuers suffered minor cuts from the knife. Defendant was convicted of first degree burglary and sentenced to two years in prison.

In 1997, defendant broke a window in a house he thought was unoccupied because no one answered the doorbell. However, the owner was home and had peeked out a peephole when defendant rang the bell. She later recognized his clothing. After he broke the window, a house alarm sounded and he fled through the back yard, leaving unique footprints in the fallen olives. He was arrested, pleaded guilty to attempted burglary, and was sentenced to seven years in prison.

Defendant suffered an additional conviction for felony possession of a controlled substance in jail, and eight misdemeanor convictions for embezzlement, exhibiting a deadly weapon (knife), possession of stolen property, possession of a switchblade knife in a motor vehicle, annoying/molesting a child, possession of marijuana over 28.5 grams, and Vehicle Code violations. The probation report noted that defendant â€