P. v. Castleman
Filed 3/14/13 P. v. Castleman CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD D.
CASTLEMAN,
Defendant and Appellant.
A131730
(Humboldt
County
Super. Ct.
No. CR1003911)
Defendant
was convicted of sale or transportation of heroin, possession of
methamphetamine, and providing false information to a police officer after he
was found to be storing a significant quantity of narcotics in his pants and
jacket. As a result of three prior
convictions for robbery, defendant was sentenced under the “Three Strikes†law
(Pen. Code, § 667, subds. (b)–(i)) to a term of 25 years to life
imprisonment. Defendant contends the
trial court erred in denying his requests to represent himself at trial and to
appoint substitute counsel and in granting his request for a mistrial. He also contends his sentence constituted
the court should have stricken his prior robbery convictions. We affirm.
BACKGROUND
Defendant
was charged in an amended information, filed December 15, 2010, with
& Saf. Code, § 11351), sale or transportation of heroin (Health &
Saf. Code, § 11352, subd. (a)), possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)), and providing false information to a
police officer (Pen. Code, § 148.9, subd. (a)). Each of the drug-related counts also alleged
three prior serious felony convictions (Pen. Code, § 667, subds. (b)–(i))
and five prior prison terms (Pen. Code, § 667.5, subd. (b)). All three prior serious felony convictions
were for robbery (Pen. Code, § 211; Pen. Code, former § 213.5; see
198 Cal.App.3d 924, 926 & fn. 1), one dating from 1986 and the two
others from 1992.
The
drugs were found on defendant’s person during searches conducted after he was
detained on suspicion of a probation violation and placed in the back seat of a
police car. Defendant’s defense was
based on the testimony of his girlfriend, who claimed she had placed the drugs
on him when she was permitted by police to embrace him in the police car.
When
the parties first appeared for trial on December 13, 2010, defense counsel made
an oral motion for a continuance, asking for additional time to locate a
witness who might have observed the girlfriend’s planting of evidence. The court denied the motion for lack of
diligence in pursuing the witness.
Soon
after, defendant moved for leave to discharge his appointed attorney and
represent himself at trial. Defendant
noted he had already made three unsuccessful motions to replace his appointed
counsel (People v. Marsden (1970)
2 Cal.3d 118 (Marsden))
better chance of success if able to conduct the defense in his own way.
untimely, having been made on the day set for trial, and defendant conceded he
was not prepared to proceed to trial if his request was granted. Expressing the belief defendant’s motion was
made as a response to the denial of his most recent Marsden motion, the court told defendant it was “not inclined†to
grant a continuance. The court asked
defendant for his preference, assuming a continuance was unavailable. Under those circumstances, defendant responded,
he would prefer to continue with new counsel and requested another
The
court conducted the fourth Marsden hearing
the same day. Explaining his
dissatisfaction with appointed counsel, defendant told the court he wanted to
call as witnesses three persons who had been present at the time of his
arrest. Defendant insisted all three
witnesses were “personal snitches†of the arresting police officer and all
three were represented by the office of conflict counsel, the same office that
employed his attorney. Defendant
believed those representations and the representation of his girlfriend created
a conflict of interest for counsel.
Defendant also believed the warrant on which he had been detained should
be challenged because it was based on false information.
Defense
counsel told the court he was employed as a public defender in the office of
conflict counsel and had been practicing as a criminal defense attorney in
Humboldt County for six years.
Addressing the three potential witnesses, counsel explained one of them
was the owner of the vehicle in which defendant was sitting at the time of his
detention. Once the vehicle was
determined not to have been stolen, that person had been cleared by police of
any further involvement in the case. The
other two were men who had been present at the scene of the arrest when police
first arrived but left prior to defendant’s detention. Counsel believed, based on the police report,
none of the three could give relevant testimony and noted defendant had never
before mentioned to him the two witnesses who left the scene prior to the
detention. Further, counsel had no
information to suggest the witnesses were informants for the police. Counsel acknowledged representing the driver,
but said he was unaware of any representation by his office of the other two
persons. He believed there was no
conflict with respect to defendant’s girlfriend because her case had been
closed. Regarding a challenge to the
warrant, counsel said it would not invalidate the detention even if successful,
since defendant was known to the arresting officer as a parolee who could be
searched without probable cause.
The
court denied the motion, telling defendant, “[J]ust because an attorney doesn’t
do what you say doesn’t mean that they aren’t prepared to represent you fully
and completely in regard to the case. . . . [¶] . . . [¶]
. . . [Defense counsel] is prepared, looking out for your best
interests, despite your concerns otherwise.â€
On
the day designated for commencement of jury selection, an unfamiliar attorney
appeared with defense counsel, telling the court, “I’ve been asked by
[defendant] to substitute in today.â€
When the court learned the attorney was not prepared to proceed, having
not reviewed any trial materials, it pressed her for a commitment to see the
case through, saying, “I’m not saying I’m going to grant a continuance based on
that, but I need your personal representations on the record that you are—have
been retained for trial and that you would not be asking to be relieved as
counsel because of lack of compensation as it relates to going to trial.†When the attorney conceded she had not yet
been paid, the court responded, “I guess what I would tell you is that if the
Court allows you in as counsel today and continues the matter, the Court is
stating now that you will most likely not be able to ask the Court to be
relieved if you are not fully compensated for that.†After discussing the matter privately with
defendant, the new attorney declined the representation.
Defendant
then asked the court about its decision not to grant him a continuance to
prepare to represent himself, implicitly contrasting his situation with that of
the new attorney. The court responded,
“I don’t think your request to be self-represented was made based on the
statutory requirements that are there and that it was simply a result of your
dissatisfaction with counsel.†The court
explained it was willing to give more time to new counsel because she might
have been able to provide defendant with effective representation.
When,
a short time later, defendant renewed his request for leave to represent
himself and a continuance to prepare, the court clarified its ruling. It noted defendant was entitled to represent
himself as a matter of constitutional right, but only if “the request [is made]
within a reasonable time before trial. [¶] . . . [T]he defendant’s
technical legal knowledge is irrelevant to the Court’s assessment of the
defendant’s knowingly exercising a right to self-representation.†The court said its denial was based on
defendant’s failure to make a timely request.
On
the morning following jury selection, December 22, defense counsel informed the
court he had just been provided with seven hours of recordings of jailhouse
visits between defendant and his girlfriend, who was to be the primary defense
witness. While not contending the late
disclosure constituted misconduct by the prosecution, defense counsel told the
court he would require a continuance to review the materials or, in the
alternative, exclusion of the tapes or a mistrial. Counsel estimated he would need 10 court days
to review the materials fully and discuss them with defendant. The prosecutor told the court he had a
“prepaid vacation†scheduled for the second week of January.
In
ruling on the request, the court recognized it might not be possible to resume
trial at the end of the continuance, depending on the content of the
tapes. Defense counsel confirmed he
could not “assure†the court that trial could resume after a 10-day break. The court granted a continuance until
December 28, intending on that day to entertain a further request for time, if
necessary.
Upon
hearing the court’s ruling, defense counsel, concerned he would not be prepared
to resume trial that quickly, requested a mistrial and offered defendant’s
waiver of double jeopardy rights. The
court confirmed the waiver with defendant.
Noting the late disclosure could be unduly prejudicial to defendant, the
court granted the motion. A new trial
was scheduled for slightly over a month later, on January 24, 2011.
Jury
selection ultimately began on February 14.
Defendant was convicted on three of the counts, transportation, simple
possession, and providing false information.
A mistrial was declared as to the charge of possession for sale after
the jury was unable to agree on a verdict.
At a later court trial, the enhancement allegations were found
true.
At
sentencing, the trial court granted defendant’s motion to strike the prior
prison term allegations as to all counts, but it declined to strike the prior
serious felony conviction allegations as to the transportation count. Accordingly, defendant was sentenced on that
count to a term of 25 years to life. In
explaining its decision not to strike the prior strike convictions, the court
noted that although the convictions occurred “a long time ago†in 1986 and
1992, defendant had three convictions in those two years, with another felony
conviction between them. In addition, he
had other convictions since 1992, including several felony and misdemeanor
convictions in 1998. As a result, the
court concluded, “[T]here has been very little time that [defendant] has not
been committing offenses, except for the time that he’s in prison, although he
does have the escape conviction even related to that.†His performance on parole had been
consistently poor. The present offense
involved “a large amount†of heroin that was individually packaged, and
defendant exhibited no acceptance of responsibility for his criminal
conduct. Given his life circumstances,
the court concluded, his “prospects are poor for a stable, law-abiding life.â€
DISCUSSION
A. Defendant’s Faretta Motion
Defendant
first contends the trial court abused its discretion in denying his motion for
self-representation, generally referred to as a Faretta motion. (
806 (Faretta).)
“A
trial court must grant a defendant’s request for self-representation
if the defendant unequivocally asserts that right within a reasonable time
prior to the commencement of trial, and makes his request voluntarily,
knowingly, and intelligently.
[Citations.] As the high court
has stated, however, ‘Faretta itself and later cases have made clear
that the right of self-representation
is not absolute.’ [Citations.] Thus, a Faretta motion may be denied
if the defendant is not competent to represent himself [citation], is
disruptive in the courtroom or engages in misconduct outside the courtroom that
‘seriously threatens the core integrity of the trial.’ [Citations.] [¶] Likewise, we have long
held that a self-representation
motion may be denied if untimely.
[Citation.] . . . ‘[O]nce a defendant has chosen to proceed to
trial represented by counsel,’ a defendant’s motion for self-representation
is ‘addressed to the sound discretion of the court.’ †(People
v. Lynch (2010) 50 Cal.4th 693, 721–722, fn. omitted, disapproved on other
grounds in People v. McKinnon (2011)
52 Cal.4th 610, 637–638, 643.)
This
case is controlled by People v. Horton
(1995) 11 Cal.4th 1068 (Horton), the
circumstances of which are indistinguishable from those presented here. In Horton,
the defendant made a Faretta motion
on the day of trial, immediately after his Marsden
motion was denied. The trial court
concluded defendant was attempting to obstruct the prosecution and delay trial,
and it denied the motion as untimely. (
order to invoke the constitutionally mandated unconditional right of self-representation, a defendant must assert that right
within a reasonable time prior to trial.
The latter requirement serves to prevent a defendant from misusing the
motion to delay unjustifiably the trial or to obstruct the orderly
administration of justice.
[Citation.] If the motion is
untimely—i.e., not asserted within a reasonable time prior to trial—the
defendant has the burden of justifying the delay. [Citation.]
‘[A] defendant should not be permitted to wait until the day preceding
trial before he moves to represent himself and requests a continuance in order
to prepare for trial without some showing of reasonable cause for the lateness
of the request. In such a case the
motion for self-representation is addressed to the
sound discretion of the trial court . . . .’ [Citation.] [¶] The record amply
supports the trial court’s action in denying defendant’s untimely request after
finding a lack of any justification for the delay.†(Id.
at pp. 1110–1111.)
Defendant
similarly failed to justify his delay in making the Faretta motion. No
explanation for the delay was offered, and the circumstances tended to confirm
the trial court’s intuition that defendant made the motion to unburden himself
of appointed counsel rather than from a sincere desire to serve as his own
attorney. While, as defendant points
out, there was no finding he intended to disrupt or delay the proceedings, as
in Horton, the Supreme Court did not
rely on the finding of dilatory intent to affirm that case. Granting the request would have the effect of
delay, and, in the absence of any justification, this was sufficient under
Accordingly, the trial court properly exercised its discretion to deny
the Faretta motion as untimely.
Defendant
first contends his motion would have been considered timely under the
interpretation of Faretta applied in
certain federal appellate courts. In the
event of any discrepancy in the application of the United States Supreme
Court’s precedents regarding self-representation, however, we are bound to
follow our own high court’s rulings. As
discussed above, the trial court’s ruling was a proper exercise of discretion
under those rulings.
Citing
the trial court’s purported willingness to grant additional time to permit
defendant to retain a new lawyer, he next contends allowing him time to prepare
his own representation would not have unduly disrupted the proceedings. Contrary to defendant’s contention, the trial
court did not offer to grant a continuance to accommodate new counsel. The court merely asked whether the attorney
would commit firmly to representation assuming
a continuance would be granted. Yet
even if the court had been willing to tolerate a trial delay to accommodate
defendant’s choice of counsel, that willingness would not retrospectively
justify defendant’s own delay in asserting his Faretta rights. Further,
granting defendant’s motion not only would have required delaying the scheduled
trial for a longer period than would be necessary for experienced counsel, but
also would have risked causing additional delay if defendant found himself
unequal to the task and requested reappointment of counsel. The longer continuance and the potential for
disruption in the event defendant requested reappointment of counsel justified
different treatment of defendant’s request to represent himself and any request
for time by newly retained counsel.
Defendant
also argues the trial court based its ruling on improper considerations, such
as defendant’s lack of legal experience.
On the contrary, while the trial court initially expressed concern about
defendant’s lack of training, it ultimately denied the motion on grounds of
untimeliness, recognizing “[t]he defendant’s technical legal knowledge is
irrelevant to the Court’s assessment of the defendant’s knowingly exercising a
right to self-representation.†The court
also cited its suspicion defendant’s motion was made in response to the denial
of his Marsden motion rather than a
genuine desire to serve as his own attorney.
This, too, would have been a proper reason to deny the motion because
the request for self-representation was “not unequivocal.†(People
v. Scott (2001) 91 Cal.App.4th 1197, 1205–1206.) Even if the trial court’s reasoning had been
flawed, however, “ ‘ “we review the ruling, not the court’s reasoning
and, if the ruling was correct on any ground, we affirm.†’ †(People
v. Rogers (2009) 46 Cal.4th 1136, 1162, fn. 14.)
Finally,
defendant argues the court abused its discretion in “conditioning [defendant’s]
right to represent himself on the court’s granting of a continuance.†The argument badly misstates the record. In fact, the court initially informed
defendant it would not be inclined to grant a continuance if he insisted on
assuming his own defense. Upon hearing
he would not be granted more time, defendant withdrew his request. Later, when defendant reasserted his desire
to represent himself, the court denied the request as untimely. At no point did the court condition the grant
of defendant’s Faretta motion on a
continuance.
title="">[2]
B. Defendant’s Marsden Motion
Defendant
next contends the trial court abused its discretion in denying his fourth
“ ‘When
a defendant seeks substitution of appointed counsel pursuant to [
the defendant to explain the basis of his contention and to relate specific
instances of inadequate performance. A
defendant is entitled to relief if the record clearly shows that the appointed
counsel is not providing adequate representation or that defendant and counsel
have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result.†’
[Citation.] ‘A trial court should
grant a defendant’s Marsden motion only when the defendant has made “a
substantial showing that failure to order substitution is likely to result in
constitutionally inadequate representation.†’ [Citation.] [¶] ‘We
review the denial of a Marsden motion for abuse of discretion.’ [Citation.]
‘Denial is not an abuse of discretion “unless the defendant has shown
that a failure to replace counsel would substantially impair the defendant’s
right to assistance of counsel.†’ â€
(People v. Streeter (2012) 54
Cal.4th 205, 230.)
The
presentations at the Marsden hearing
provided no indication either that defense counsel’s representation was
inadequate or that defendant and counsel had an irreconcilable conflict. Defendant’s primary concern at the hearing
was his attorney did not intend to call as witnesses certain persons defendant
believed to have relevant and exculpatory information. It has long been held that a difference over
trial tactics does not constitute an irreconcilable conflict. (People
v. Myles (2012) 53 Cal.4th 1181, 1207.)
While defendant argues the record demonstrates “such an extensive
disagreement over procedural and substantive tactics as signaled a virtual
standstill in any ‘assistance of counsel,’ †the contrary is true. The record demonstrates counsel was well aware
of defendant’s views, had taken them seriously enough to investigate them
thoroughly, and had concluded they were unsupported. This is the very opposite of a broken
relationship.
Defendant
also contends the hearing demonstrated defendant’s “trust and relationship with
appointed counsel had irremediably broken down.†Lack of trust by a defendant in his attorney
does not alone justify a substitution of appointed counsel. “ ‘If a defendant’s claimed lack of
trust in, or inability to get along with, an appointed attorney were sufficient
to compel appointment of substitute counsel, defendants
effectively would have a veto power over any appointment, and by a process of
elimination could obtain appointment of their preferred attorneys, which is
certainly not the law.’ †(
1207.)
In
any event, defendant has not demonstrated the failure to appoint substitute
counsel “substantially impair[ed]†his Sixth Amendment right to counsel. (People
v. Streeter, supra, 54 Cal.4th at p. 230.)
Defendant cites no impairment at all of counsel’s performance at trial
as a result of the purported conflict.
He argues only that he might have accepted a favorable plea offer if he
had been given replacement counsel, but there is nothing in the record to
support such speculation.
Defendant
argues the trial court erred in “declaring a mistrial in order to effectuate a
longer continuance than it was willing to grant.†Although couched as a challenge to the trial
court’s grant of his motion for a mistrial, defendant’s argument is, at best, a
challenge to the trial court’s refusal to grant his attorney’s request for a
10-court-day continuance.
“ ‘ “ ‘The
granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the
benefit which the moving party anticipates but also the likelihood that such
benefit will result, the burden on other witnesses, jurors and the court and,
above all, whether substantial justice will be accomplished or defeated by a
granting of the motion.’ â€
[Citation.] In the absence of a
showing of an abuse of discretion and prejudice to the defendant, a denial of a
motion for a continuance does not require reversal of a conviction.
[Citation.]’ [Citations.] Defendant bears the burden of establishing
that denial of a continuance request was an abuse of discretion.†(People
v. Panah (2005) 35 Cal.4th 395, 423.)
We
find no abuse of discretion in the court’s decision to grant a tentative
continuance of six calendar days, rather than the full 10-court-day continuance
requested by defense counsel.
Importantly, the court did not suggest the six-day continuance was
final; its plan was to hold a further conference at the expiration of the
continuance to determine the appropriate steps once defense counsel had
reviewed the tapes. The court expressly
mentioned the possibility of entertaining a request for a further continuance
at that time.
There
is nothing unreasonable about this ruling.
Defense counsel was faced with reviewing seven hours of audio tape. That was, literally, a day’s work. If the results of the review dictated a
substantial change in trial strategy for the defense, requiring further time,
counsel was given the option of requesting further time when the parties
reconvened. The trial court’s
continuance of six calendar days was not dramatically different from counsel’s
request for 10 court days, and any hardship was mitigated by the court’s expressed
willingness to consider a further continuance if justified. There is no reason to believe, as defendant
contends, the trial court imposed the shorter continuance for the purpose of
forcing defense counsel to request a mistrial.
As
noted above, defendant contends the trial court erred in granting the motion
for a mistrial, but we conclude he waived the right to challenge this ruling by
expressly consenting to the court’s grant of the motion. The general rule is that a defendant waives
any double jeopardy claim by consenting to a motion for mistrial. (E.g., People
v. Batts (2003) 30 Cal.4th 660, 679–680.)
By the same reasoning, the consent waives any claim for other relief
resulting from the grant of the motion.
In
addition, defendant cites no prejudice from the grant of a mistrial. At less than two months, the delay in his
trial was brief, and he does not contend there was any adverse impact on his
trial as a result. While defendant
claims a denial of his “ ‘valued right to have his trial completed by a particular tribunal’ †(
___ [130 S.Ct. 1855, 1867]), this particular tribunal had not even heard
opening arguments, let alone evidence.
The present situation is simply not comparable to the typical double jeopardy
case, in which a mistrial is declared in the midst, or after the completion, of
testimony. In any event, the right he
cites is protected by the prohibition against double jeopardy. (Ibid.) Because defendant makes no claim of a
violation of his right against double jeopardy, this right could not have been
wrongfully denied.
name="_ftnref4" title="">[4]
D. Refusal
to Strike Defendant’s Prior Convictions
Defendant contends the trial court
abused its discretion in denying his Romero
motion to strike his prior serious felony convictions. (People
v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).)
The narrow range of our task in
reviewing the denial of a Romero motion
was defined in People v. Carmony
(2004) 33 Cal.4th 367: “ ‘[T]he
Three Strikes initiative, as well as the legislative
act embodying its terms, was intended to restrict courts’ discretion in
sentencing repeat offenders.’ [Citation.]
To achieve this end, ‘the Three Strikes law does
not offer a discretionary sentencing choice, as do other sentencing laws, but 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 withstand scrutiny for abuse, this defendant should be treated as though he
actually fell outside the Three Strikes scheme.†’ [Citation.]
“Consistent with the language
of and the legislative intent behind the three strikes law, we
have established stringent standards that sentencing courts must follow in
order to find such an exception. ‘[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(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 scheme’s
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.]
“Thus,
the three strikes law not only establishes a sentencing
norm, it carefully circumscribes the trial court’s power to depart from this
norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong
presumption that any sentence that conforms to these sentencing norms is both
rational and proper.
“In
light of this presumption, a trial court will only abuse
its discretion in failing to strike a prior felony conviction allegation in
limited circumstances. For example, an
abuse of discretion occurs where the trial court was not ‘aware of its
discretion’ to dismiss [citation], or where the court considered impermissible
factors in declining to dismiss [citation].
Moreover, ‘the sentencing norms [established by the Three Strikes law
may, as a matter of law,] produce[] an “arbitrary, capricious or patently
absurd†result’ under the specific facts of a particular case. [Citation.]
“But ‘[i]t is not enough to
show that reasonable people might disagree about whether to strike one or more’
prior conviction allegations.
[Citation.] Where the record is
silent [citation], or ‘[w]here 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 court’s ruling, even if
we might have ruled differently in the first instance’ [citation]. Because the circumstances must be
‘extraordinary . . . by which a career criminal can be deemed to fall
outside the spirit of the very scheme within which he squarely falls once he
commits a strike as part of a long and continuous criminal record, the
continuation of which the law was meant to attack’ [citation], the
circumstances where no reasonable people could disagree that the criminal falls
outside the spirit of the three strikes scheme must be even more
extraordinary. Of course, in such an
extraordinary case—where the relevant factors described in [
support the striking of a prior conviction and no reasonable minds could
differ—the failure to strike would constitute an abuse of discretion.†(People
v. Carmony, supra, 33 Cal.4th at pp. 377–378.)
This
is not an extraordinary case. The trial
court was clearly aware of the scope of its discretion and the factors guiding
that discretion. The court found, in
essence, that defendant’s prior serious felony convictions, his other
convictions, and “the particulars of his background, character, and prospectsâ€
(Williams, supra, 17 Cal.4th at p.
161), suggest he is the type of repeat offender intended to be covered by the
Three Strikes law. Defendant argues his
convictions should have been stricken because they occurred many years ago, but
the nature and timing of the prior strikes is only one factor to be considered
under Romero. As the trial court noted, defendant not only
suffered the strike convictions but has spent substantial time in prison in the
interim years as a result of other offenses, consistently failing to succeed on
parole. There is no basis for reversing
the court’s decision not to strike the prior serious felony convictions.
E. Cruel and Unusual Punishment
Defendant contends his
25-year-to-life sentence violates the Eighth Amendment proscription against
cruel and unusual punishment. Defendant
waived this challenge when he failed to raise it in the trial court. (People
v. Norman (2003) 109 Cal.App.4th 221, 229.)
Even if there were no waiver, however, we would find no merit in the
claim.
“The Eighth Amendment
prohibits imposition of a sentence that is ‘grossly disproportionate’ to the
severity of the crime. [Citations.] In a noncapital case, however, successful proportionality
challenges are ‘ “exceedingly rare.†’ [Citation.]
In the rare case where gross disproportionality can be inferred from (1)
the gravity of the offense and harshness of the penalty, the court will
consider (2) sentences imposed for other offenses in the same jurisdiction and
(3) sentences imposed for commission of the same crimes in other
jurisdictions. [Citation.] ‘[I]t is only in the rare case where a
comparison of the crime committed and the sentence imposed leads to an inference
of gross disproportionality that the second and third criteria come into
play.’ †(
1080, 1087–1088.)
Eighth Amendment challenges to Three
Strikes sentences have been upheld in nearly all cases. In the leading case of Ewing v. California (2003) 538 U.S. 11, 20–21, for example, the Supreme
Court upheld against constitutional challenge an indeterminate life sentence
for a theft of golf clubs, supported by prior serious felony convictions for
robbery and burglary. Our own Supreme
Court’s most recent consideration of the issue, In re Coley (2012) 55 Cal.4th 524, concerned a triggering
conviction for the failure to register as sex offender. Holding that “in determining the
gravity of petitioner’s conduct in evaluating an Eighth Amendment challenge to
a sentence imposed under a recidivist sentencing statute, we must consider not
only petitioner’s triggering offense but also the nature and extent of
petitioner’s criminal history,†the court affirmed an indeterminate life
sentence for a defendant who had refused to register and whose prior offenses
were “particularly heinous.†(
for failure to register under the Three Strikes law is unconstitutional only if
the failure was “a negligent oversight†in the course of a pattern of
compliance. (Id. at p. 551.)
Measured
against these precedents, there is no basis for defendant’s claim of cruel and
unusual punishment. His triggering
offense, the transportation of commercial quantities of heroin, was serious. It was in no sense a “negligent oversight.†(In re
Coley, supra, 55 Cal.4th at p. 551.)
His past conduct involved three convictions for robbery and a series of
lesser crimes, such as drug possession, jail escape, and burglary, which
occurred periodically throughout his life.
While the sentence imposed might be disproportionate if the triggering
offense were considered in isolation, in reviewing a conviction under the Three
Strikes law we view the conviction in the context of the defendant’s past
conduct. From that perspective, we find
no gross disproportionality. (See
354, 366–367 [no Eighth Amendment violation when Three Strikes sentence imposed
for possession of heroin and receiving stolen property when defendant had long
history of burglary and narcotics offenses].)
F. Proposition 36
In
a letter brief filed November 9, 2012, defendant requested his sentence be
vacated and the matter remanded to the trial court for resentencing pursuant to
recently approved Proposition 36, the Three Strikes Reform Act of 2012 (the
Act). While not necessarily disputing
defendant’s entitlement to relief under the Act, the Attorney General contends
defendant is required to follow the procedure set out in the Act for existing
prison inmates. We agree and decline to
vacate his sentence.
As
explained in People v. Yearwood (2013)
213 Cal.App.4th 161 (Yearwood),
“[t]he Act changes the requirements for sentencing a third strike offender to
an indeterminate term of 25 years to life imprisonment. Under the original version of the three
strikes law a recidivist with two or more prior strikes who is convicted of any
new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by
reserving the life sentence for cases where the current crime is a serious or
violent felony or the prosecution has pled and proved an enumerated
disqualifying factor. In all other
cases, the recidivist will be sentenced as a second strike offender. [Citations.]
The Act also created a postconviction release proceeding whereby a
prisoner who is serving an indeterminate life sentence imposed pursuant to the
three strikes law for a crime that is not a serious or violent felony and who
is not disqualified, may have his or her sentence recalled and be sentenced as
a second strike offender unless the court determines that resentencing would
pose an unreasonable risk of danger to public safety.†(Id.
at pp. 167–168.)
Like
defendant here, the defendant in Yearwood
was convicted and sentenced to an indeterminate life sentence under the
Three Strikes law prior to the approval of the Act. On direct appeal from his conviction, he
requested the court vacate his sentence and remand for resentencing under the
Act. (Yearwood, supra, 213 Cal.App.4th at p. 168.) In declining and requiring the defendant to
pursue a petition for recall of sentence in the trial court under new section
1170.126, Yearwood explained the
issue turns on whether the Act “appl[ies] retroactively to prisoners who were
sentenced prior to the Act’s effective date but whose judgments were not final
as of that date.†(Yearwood, at p. 168.)
Following an extensive analysis under In re Estrada (1965) 63 Cal.2d 740, Yearwood concluded the Act was not intended to apply retroactively
to such persons. (Yearwood, at pp. 171–178.)
As a result, these defendants must seek relief through a petition for
recall, the specified postconviction remedy.
We find no basis for disagreeing with Yearwood’s analysis or its result and, solely on this basis,
decline to vacate defendant’s sentence under the Act. We express no opinion on the proper
disposition of any petition for recall he might file in the trial court
pursuant to section 1170.126.
DISPOSITION
The
judgment of the trial court is affirmed.
_________________________
Margulies,
J.
We concur:
_________________________
Marchiano, P.J.
_________________________
Banke, J.
name="_ftn1" title="">[1]
The most recent Marsden motion had
been denied after a hearing four days earlier.
name="_ftn2" title="">[2]
The case cited by defendant as authority for his argument, People v. Sherrod (1997) 59 Cal.App.4th 1168, merely holds that, if
a Faretta motion is granted on the
day set for trial, the defendant must be given a fair opportunity to prepare
for trial. (Sherrod, at p. 1174.)
It does not hold that an untimely motion must be granted when a
continuance would be necessary to permit such preparation.
