P. v. Chambers

Filed 10/15/07 P. v. Chambers CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Edwin James Chambers, pled guilty to robbery (Pen. Code, 211)^[1]and admitted a prior prison term enhancement ( 667.5, subd. (b)), a serious felony enhancement ( 667, subd. (a)), and allegations that he had two prior convictions within the meaning of the three strikes law ( 667, subds. (b)-(i)).

On December 12, 2006, the court sentenced Chambers to 25 years to life. On appeal, Chambers contends: 1) the court abused its discretion when it denied his Romero^[2]motion; and 2) his sentence is cruel and unusual under the state and federal constitutions. We will affirm.

FACTS

On April 12, 2006, at approximately 1:44 p.m., Chambers entered a bank in Modesto and handed a teller a note that stated, You are being watched. I . . . want 20s, 50s, and 100s. Unmarked, undyed . . . Now or your [sic] DEAD! The teller handed Chambers over $1,000 in cash which included a dye pack that exploded while Chambers was in the banks parking lot. Chambers drove off in a car that he abandoned after he lost control of it and crashed into a fence. He was arrested a short time later and admitted committing the robbery.

On November 29, 2006, Chambers filed a motion requesting the court to strike one of his prior strike convictions pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, and on the grounds that a mandatory life sentence under the three strikes law constituted cruel and unusual punishment on its face and as applied to him.

Chamberss probation report, which the court read, indicates that in 1975, he was convicted of misdemeanor vandalism and battery. In 1978, he was convicted of misdemeanor driving under the influence and felony grand theft from a person. In 1983, Chambers was convicted of misdemeanor vandalism. In 1985, he was convicted of two counts of felony robbery with firearm use enhancements and sentenced to prison for seven years. In 1989, he violated his parole. In 1990, he was convicted of three misdemeanors, public intoxication, petty theft, and assault. In 1992, he was convicted of felony distribution of a controlled substance and sentenced to one year in prison. In 1993, he was convicted of two felonies, making a false report, and jumping bail. In 1996, he was convicted of misdemeanor possession of a controlled substance. In 2002, he was convicted of petty theft. In 2003, he was convicted of felony possession of a controlled substance and sentenced to prison for 32 months. Chambers was on parole for this latter offense when he committed the instant offenses.

The report also indicates that Chambers considered himself a drug addict, and that he began using heroin at age 7 when a family member showed him how. Chambers completed a nine-month drug rehabilitation program at the Solidarity House in Turlock but began using drugs again shortly after completing the program. He was still living at the Solidarity House when he was arrested in the instant matter. He also received drug treatment services on two occasions from the Stanislaus Recovery Center

On December 12, 2006, the court denied Chamberss motion to dismiss one of his prior convictions, granted the prosecutions motion to dismiss the two enhancements, and sentenced Chambers to an indeterminate term of 25 years to life. In denying Chambers Romero motion the court stated:

Looks like both of the strikes are out of the same conviction, if not the same course of events, but at least the same court proceeding. And they are fairly old, which would normally be something I would consider as a factor that would strongly indicate striking one of them.

However, given the fact that there has been a fairly continuous criminal history since that time, alternating -- or at least maybe predominantly even misdemeanor, but certainly both misdemeanor and felony, I dont know that that necessarily is a factor in favor of striking either of the strikes.

The fact that the criminal history is drug related is probably only a factor if theres some substantial progress thats been made in recovery and some period of time afterward showing that that has taken some traction, and that doesnt appear to be the case here. The criminal history seems to be fairly consistent, unaffected by his attempts to get into treatment. Its too bad, of course, that he wasnt able to get into treatment and be able to follow through with that and have that -- have -- exercise some change in his life so that he could exercise some control over his life. But at this point I wouldnt see that as necessarily a factor in mitigating in favor of striking the strike either. Given the fact that this is -- was a very dangerous situation and a fairly significant occurrence.

So based on that Im going to deny the request to strike the strikes.

DISCUSSION

The Romero Motion

Chambers strike convictions resulted from an incident in 1985 when he entered a liquor store while inebriated to buy beer after the store had stopped selling alcoholic beverages. Chambers was armed with a handgun and demanded money from the cashier. He then took a purse from a customer to carry the $14 he took from the cashier.

Chambers contends the court erred as a matter of law by its failure to strike one of his prior convictions because they both resulted from the same incident and the sentence for one conviction was stayed pursuant to section 654. Alternatively he contends that the following factors supported the courts exercise of discretion to dismiss one of his prior convictions: 1) his two robbery convictions arose from a single incident; 2) the two convictions were over 20 years old; 3) with the exception of felony convictions in 1992 and 2003, all his conviction since 1985 were misdemeanors; 4) he had a longstanding addiction to heroin; 5) he committed the underlying offenses under the influence of drugs; 6) he suffered from mental health problems; 7) the manner in which he committed the robbery indicated a lack of planning or sophistication; 8) he had maintained semi-regular employment throughout his life; 9) he was 54 years old when sentenced; and 10) the court could still have imposed a sentence of up to 18 years if it had struck one prior conviction. We will reject these contentions.

Section 1385 permits the trial court to exercise its discretion and dismiss a prior strike conviction if the dismissal is in furtherance of justice. ( 1385, subd. (a); People v. Garcia (1999) 20 Cal.4th 490, 499, 502; People v. Williams (1998) 17 Cal.4th 148, 158; People v. Superior Court (Romero ), supra, 13 Cal.4th at pp. 529-530.) In Williams, the Supreme Court stated that in deciding whether to strike a prior conviction,

the court in question must consider whether, in light of the nature and circumstances of [the defendants] 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. (People v. Williams, supra, 17 Cal.4th at p. 161.)

A courts ruling on a Romero motion is subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts [citations]. (People v. Williams, supra, 17 Cal.4th at p. 162.) To show an abuse of discretion, the defendant must demonstrate the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (Id. at p. 310.)

Chambers relies on People v. Benson (1998) 18 Cal.4th 24 to contend that the court abused its discretion as a matter of law when it denied his motion to strike one of his prior strike convictions. In Benson the defendants prior strike convictions were based on his 1980 convictions for first degree burglary and assault with a deadly weapon. Both convictions resulted from an incident in 1979 during which he entered the victims apartment and stabbed her 20 times. Pursuant to section 654, the trial court in that case stayed the sentence imposed on his assault conviction. (Id. at p. 27.)

In 1994, the defendant was arrested for shoplifting. He was subsequently convicted of shoplifting and two strike convictions, based on his 1980 convictions, were found true and used to sentence him to an indeterminate sentence of 25 years to life. On appeal, the defendant contended that the Three Strikes law cannot properly be interpreted to permit separate strikes to be imposed for offenses that in a prior proceeding were determined to have been committed as part of an indivisible transaction, committed against a single victim, and as to which it was concluded that imposition of separate punishment for each offense would constitute multiple punishment proscribed by section 654. (People v. Benson, supra, 18 Cal.4th at p. 28.)

In rejecting this argument, the court stated:

We must conclude, based upon the plain language of the statute, that the Legislature and the voters through the initiative process clearly intended that each conviction for a serious or violent felony counts as a prior conviction for sentencing purposes under the Three Strikes law, even where the convictions were based upon conduct against a single victim committed at the same time with a single intent, and where pursuant to section 654 the defendant was punished for only a single crime. (People v. Benson, supra, 18 Cal.4th at p. 30.)

Benson further held there clearly was a rational basis upon which the electorate and the Legislature could direct the courts, in cases involving a defendant with two prior felony convictions who thereafter commits a subsequent felony, to count each prior felony conviction as a strike. (People v. Benson, supra, 18 Cal.4th at pp. 34-35.)
Benson acknowledged the trial court still retained discretion pursuant to Romero and section 1385 to dismiss any strike conviction in the interests of justice. (People v. Benson, supra, 18 Cal.4th at p. 36.) In dicta in a footnote, the court observed:

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. (People v. Benson, supra, 18 Cal.4th at p. 36, fn. 8, italics added.)

Chambers relies on this footnote to contend that the court here erred as a matter of law when it denied his motion to strike one his prior strike convictions because his offenses arose from an indivisible course of conduct. According to Chambers, the court in Benson concluded that the defendants crimes in that case did not have to be treated as a single conviction under the three strikes law because of the high level of violence involved in the crimes. Chambers is wrong.

As discussed above, the Benson decision was based on the plain language of the statute from which the court gleaned a legislative and electorate intent that each conviction for a serious or violent felony count as a prior conviction for sentencing purposes under the three strikes law. Further, since Chamberss offenses occurred during a continuous course of conduct and involved more than a single act, as did the offenses of the defendant in Benson, Benson is controlling and we reject Chamberss claim that the court erred, as a matter of law, in denying his motion. (Cf. People v. Burgos (2004) 117 Cal.App.4th 1209, 1216 [two prior convictions, attempted carjacking and attempted robbery, were, in the language of Benson, so closely connected, having arisen from the same single act, that failure to strike one of them must be deemed an abuse of discretion].)

Chamberss two prior robbery convictions involved the taking of property from two victims at gunpoint. And, although Chamberss robbery convictions were almost 20 years old, he continued committing offenses, including several felonies, even though he served two prison terms, he received drug treatment on two separate occasions from the Stanislaus Recovery Center, and he completed a nine-month drug rehabilitation program at the Solidarity House. He also committed the underlying offenses while on parole. Additionally, although he did not use a weapon and nobody was injured in the instant case, he nevertheless threatened a bank teller with death, and he created a situation that could have resulted in a violent encounter with bank employees, patrons, or the police. (People v. Brito (1991) 232 Cal.App.3d 316, 321 [robbery is an inherently dangerous felony].) Moreover, it is clear from the courts comments in refusing to strike either of his prior strike convictions that it considered the nature and circumstances of Chamberss current offense and his prior offenses and the particulars of his background, character and prospects. Further, the court could reasonably have concluded from the above circumstances that Chambers was not outside the spirit of the three strikes law. Thus, we conclude that the court did not abuse its discretion when it denied Chamberss Romero motion.

The Cruel and Unusual Punishment Claim

Chambers contends that his sentence of 25 years to life violates the federal Constitutions Eighth Amendment ban on cruel and unusual punishment because it is grossly disproportionate to the facts of his crime and his criminal history. He further contends that it violates the California Constitutions ban on cruel and unusual punishment because it is so disproportionate to his offense that it shocks the conscience and offends fundamental notions of human dignity. We will reject these contentions.

A. Federal Constitution

A punishment for a term of years violates the Eighth Amendment to the United States Constitution if it is an extreme sentence[ ] that [is] grossly disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 23 (Ewing) (plur. opn. of OConnor, J.); Lockyer v. Andrade (2003) 538 U.S. 63, 72; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.).) In a noncapital case, successful challenges to the proportionality of particular sentences have been exceedingly rare. [Citation.] (Ewing, supra, 538 U.S. at p. 21.)

In Ewing, the United States Supreme Court upheld application of Californias three strikes law where the defendant was sentenced to a term of 25 years to life for shoplifting golf clubs worth approximately $ 1,200. (Ewing, supra, 538 U.S. at pp. 17-18, 30-31.) In rejecting his cruel and unusual punishment claim, the court explained that the Eighth Amendment contains a narrow proportionality principle applicable to noncapital sentences. However, the Eighth Amendment does not require strict proportionality between crime and sentence, but only forbids extreme sentences that are grossly disproportionate to the crime. (Id. at p. 23.)
Here, Chambers attempts to minimize the seriousness of his current offense of robbing a bank on the basis that he did not use a weapon and no one was hurt. However, he threatened the clerk with death and he could have injured innocent bystanders as he recklessly drove away from the bank and crashed his car. Further, although he did not use a weapon to commit the robbery and no one was hurt, as noted earlier, robbery is a crime with a great potential for violence. Thus, the level of seriousness of Chamberss offense is at least that of the theft in Ewing.
Chambers compares his case to the following ones to demonstrate that the punishment rendered by the trial court was grossly disproportionate to his crime. We do not find those cases persuasive because we do not find Chamberss crime to be comparable to the offenses in those cases. In Banyard v. Duncan (C.D.Cal. 2004) 342 F.Supp.2d 865, a 25-year-to-life sentence was found to be grossly disproportionate where the predicate offense was possession of a small amount of rock cocaine. (Id. at pp. 867-868.) The Ninth Circuit, in Ramirez v. Castro (9th Cir.2004) 365 F.3d 755, found a 25-year-to-life sentence grossly disproportionate to a crime of petty theft (id. at pp. 756-758) and found a similar sentence grossly disproportionate to a crime of perjury in Reyes v. Brown (9th Cir.2005) 399 F.3d 964, 965, 968-970. In Duran v. Castro (E.D. Cal. 2002) 227 F.Supp.2d 1121 the District Court found a sentence of 25 years to life disproportional to a crime of possession of a small quantity of heroin. (Id. at pp. 1125, 1135.)
While Chamberss case is similar to the above cases in that each defendant suffered from a history of repeated criminal behavior, that is where the similarity ends. Chamberss robbery and ensuing attempt to escape, posed a significant risk to society. Given the reckless and inherently violent nature of Chamberss crime, the punishment of 25 years to life is not grossly disproportionate, nor does it constitute cruel and unusual punishment under the Eighth Amendment of the federal Constitution.

The California Constitution

A punishment also may violate the California Constitution if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) In order to make that determination, Lynch suggests that we focus on the following three areas, any one of which can, by itself, establish disproportionality: (1) the nature of the offense and the offender; (2) a comparison with the punishment imposed for more serious crimes in the same jurisdiction; and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.)
In considering the nature of the offense and the offender, we examine not only the offense as defined by the statutes but also the facts of the crime in question. We review motive, manner of commission, the extent of the defendants involvement, and the consequences of the defendants acts. We also take into account the defendants culpability in light of age, prior criminality, personal characteristics, and state of mind. (People v. Crooks (1997) 55 Cal.App.4th 797, 806.)
As for the offender, Chambers has an extensive criminal history dating back more than two decades. Despite the mitigating circumstances noted by Chambers (nobody was hurt during the robbery, Chambers was unarmed when he committed the robbery, his age and drug addiction, and the remoteness of his 1985 strikes), Chamberss record reflects that, despite ample opportunities presented to him to change his life, including the completion of a nine-month drug rehabilitation program, he has shown his inability to conform his conduct to the law. Chamberss consistent pattern of misdemeanors, felonies, and parole violations clearly demonstrates that neither incarceration nor supervised release has had the least effect in reforming him.
As we have already stated, the offense itself is serious and Chamberss conduct is reckless and dangerous to society.
Our review of the offenses and the offender does not compel us to find that Chamberss sentence is grossly disproportionate to the crimes he has committed sufficient to shock the conscience and offend notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.)
With respect to the second area of focus, a comparison of the challenged penalty with punishments for more serious offenses committed in the same jurisdiction (In re Lynch, supra, 8 Cal.3d at p. 426), we note that Chambers is not being punished merely on the basis of his current offense but on the basis of his recidivist behavior. (Cf. People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.) As noted in People v. Mantanez (2002) 98 Cal.App.4th 354, The basic fallacy of appellants argument lies in his failure to acknowledge that he is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses. [Citations.] [Citation.] (Id. at p. 366, quoting People v. Stone (1999) 75 Cal.App.4th 707, 715.)
As for the third area of inquiry, although Californias sentencing scheme is among the most severe recidivist schemes in the nation, the laws harshness does not render it unconstitutional.

That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This states constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require conforming our Penal Code to the majority rule or the least common denominator of penalties nationwide. [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) We conclude that Chamberss sentence does not violate the proscription of cruel or unusual punishment under either the California or the United States Constitutions.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Levy, J., Cornell, J.

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

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.