P. v. Coneal
Filed 8/27/13 P. v. Coneal CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LATHAN ALLEN CONEAL,
Defendant and
Appellant.
H037716
(Santa Clara
County
Super. Ct.
No. CC960238)
A
jury convicted defendant Lathan Allen Coneal of
460)
two previous serious or violent felonies (§ 667, subd. (e)(2)). The trial court sentenced defendant to a
total of 35 years to life in prison pursuant to California’s “Three Strikesâ€
law,
life for committing a third felony, consecutive to two determinate terms of
five years each for his previous serious or violent felonies. (§ 667, subds. (a), (e)(2)(A)(ii).) Defendant challenges his sentence, arguing it
constitutes cruel and unusual punishment in violation of the Eighth Amendment
to the United
States Constitution and cruel or unusual punishment in violation of article
I, section 17 of the California Constitution.
He also challenges the imposition of a restitution fine, a criminal
justice administration fee, and an order that he pay victim restitution. For the reasons stated here, we will affirm
the lower court’s judgment.
I.
factual and procedural background
In
the early morning of November 3, 2009,
defendant burglarized a townhouse on Cypress Point
Court in San Jose. At the time, John Kapelowitz and Diane
Roberge lived in the house and were sleeping in separate bedrooms on the second
floor. Roberge awoke when she felt
someone bump the side of her bed. She
looked up and saw defendant crouched on the opposite side of her bed with just
the top of his head visible. Realizing a
stranger was in her room, Roberge began screaming as loud as she could and
defendant put his hands out, motioned, and said “don’t scream.†Defendant then bent down, picked up something
Roberge later confirmed was her laptop, and fled.
Kapelowitz
woke up at the sound of Roberge’s screaming and quickly went to Roberge’s
room. After calling the police,
Kapelowitz surveyed the townhouse to see what was missing. He discovered his laptop computer and its
case were missing, as well as his Blackberry cellular phone and Roberge’s
laptop. He also noticed one black glove
that he did not recognize near the stairs on the first floor.
Meanwhile,
San Jose Police Department Officer Steven Valentine was responding to another
call in the area when he heard a blood curdling scream and went on foot in the
direction of the scream. As he walked,
Officer Valentine noticed defendant walking briskly from an alley. Defendant was the only person in sight and
had a glove on one of his hands.
As
defendant attempted to enter another residence, Officer Valentine identified
himself as a police officer and told defendant to stop. At that point, defendant threw several items,
including a laptop, into some bushes and ran.
Officer Valentine pursued on foot until defendant climbed over a fence
and out of view.
Officer
Valentine and other officers eventually found defendant in an attic after
noticing a missing vent grate on the side of a residence. Police also found one black glove and a black
beanie in the attic where defendant was hiding.
When the officers searched defendant, they found a battery for a Blackberry
cellular phone.
The
police ultimately recovered both laptop computers as well as a laptop case, but
only the laptop belonging to Kapelowitz still functioned. The Blackberry cellular phone was never
recovered. Testing revealed defendant’s
DNA on both the glove found at the location of the burglary and the glove found
in the attic where he was arrested.
After the jury convicted defendant of residential burglary and found the
existence of two prior strikes, the trial court sentenced defendant to 35 years
to life in prison. The court also
ordered defendant to pay a $10,000 restitution fine (§ 1202.4), $2,600 in
restitution to Roberge for computer repairs and replacement, $639 in
restitution to Kapelowitz for his Blackberry phone, a $129.75 criminal justice
administration fee (Gov. Code, §§ 29550, 29550.1, 29550.2), as well as other
fees not at issue on appeal.
II.
discussion
We
will divide our discussion between defendant’s constitutional claims and the
claims relating to fines and restitution.
A.
Sentence of 35 Years to Life
Defendant
challenges his sentence under both the United States and California
Constitutions.
1.
Eighth Amendment Prohibition of Cruel and Unusual
Punishment
The
Eighth Amendment prohibits “cruel and
unusual punishments.†(U.S. Const., 8th
Amend.) When reviewing non-capital
sentences to determine whether the sentence is cruel and unusual, we ask
whether the sentence is “grossly disproportionate†to the crime. (Lockyer
v. Andrade (2003) 538 U.S. 63, 73.)
Federal courts look to the following criteria to assist with this
determination: “(i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions.†(Solem
v. Helm (1983) 463 U.S. 277, 292.) A
sentence will only be found grossly disproportionate in “ ‘exceedingly rare’
and ‘extreme’ case[s].†(
Kennedy, J.).)
The
United States Supreme Court has previously addressed and rejected an Eighth
Amendment claim related to an individual sentenced to an indeterminate term of
25 years to life under California’s Three Strikes law in Ewing v. California (2003) 538 U.S. 11 (Ewing). There, the jury
convicted the defendant of felony grand theft for stealing three golf clubs
with a total value of $1,197.
O’Connor, J.).) Because of previous
serious or violent felonies, the trial court applied the Three Strikes law and
sentenced the defendant to 25 years to life in prison. (Id. at
p. 20.) In affirming the defendant’s
sentence, Justice O’Connor’s plurality opinion discussed recidivist statutes
generally and California’s Three Strikes law specifically, noting that “
‘[s]tates have a valid interest in deterring and segregating habitual
criminals.’ †(Id. at p. 25, quoting
Focusing
on the first criterion, assessing the gravity of the offense and the harshness
of the penalty, the Ewing court noted
that while the theft of three golf clubs might seem trifling, their value was
not insignificant. (Ewing, supra, 538 U.S. at
p. 28.) The Court further observed that
harshness cannot be determined in the vacuum of the most recent offense, but
rather must be viewed in the context of a “long history of recidivism.†(Id. at
p. 29.) When viewed in that light, the
plurality found no gross disproportionality.
The Court found the sentence to be justified both by the defendant’s
recidivism and California’s public safety interest in incapacitating and
deterring recidivists.
in lengthy prison sentences, it reflected “a rational legislative judgment,
entitled to deference, that offenders who have committed serious or violent
felonies and who continue to commit felonies must be incapacitated.†(Id. at
p. 30.) Because the plurality found no
inference of disproportionality, it affirmed the defendant’s sentence and did
not address the other two criteria.
Turning
to the seriousness of defendant’s offense here, the jury convicted him of first
degree (residential) burglary (§ 460 [burglary of “inhabited dwelling house†is
of the first degree]). Because
non-accomplices were present in the townhouse when the burglary occurred, the
offense was per se “serious†and “violent.â€
(§ 1192.7, subd. (c)(1)(18); § 667.5, subd. (c)(21).) The jury also found defendant had two prior felony convictions for
residential burglary, both meeting the statutory criteria for serious and
violent felonies.
Though
defendant stresses no one was physically injured during his most recent
burglary, there was a high risk of harm because the townhouse was occupied,
with defendant found inside one victim’s bedroom. While there was no physical injury, the trial
court noted the victims suffered “real and enduring psychological harmâ€
as a result of the intrusion into their home.
Regarding the harshness of defendant’s sentence, we note the sentence reflects not only this burglary but
two previous convictions for the same crime.
Moreover, the lower court observed that the latest burglary was more
serious than the previous ones because there was a greater level of planning
and sophistication in its execution.
Based on a consistent history of recidivism, the trial court imposed the
sentence of 35 years to life because incapacitation appeared to be the only
effective method of preventing defendant from re-offending. Just as the plurality recognized in
California’s legitimate interest in deterring and segregating habitual
criminals. On these facts, we find no gross disproportionality between
defendant’s conviction and his sentence.
Because
we find no inference of disproportionality, we follow the practice of the
plurality in Ewing and do not address
the other two criteria.
2.
Article I, Section 17 Prohibition of Cruel or Unusual
Punishment
Article
I, section 17, prohibits “cruel or unusual punishment.†(Cal. Const., art. I, § 17.) California courts also use a three-factor
test to determine whether punishment “is so disproportionate to the crime for
which it is inflicted that it shocks the conscience and offends fundamental
notions of human dignity.†(
424.) To determine defendant’s claim, we
analyze: (1) the nature of the offense
and the offender; (2) defendant’s sentence compared with the punishment for
different offenses in California; and (3) defendant’s sentence compared with
the punishment for similar offenses in other jurisdictions. (People
v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Our
view of the offense and the offender is similar to our preceding Eighth
Amendment analysis and does not favor defendant. The jury convicted defendant of residential
burglary, a serious and violent felony, and found he had two prior strike
convictions for the same crime. The fact
that a residential burglary is deemed per se serious and violent reflects the
Legislature’s understanding of the potential for violence inherent in the
offense. (People v. Hughes (2002) 27 Cal.4th 287, 355 [noting burglary laws
recognize danger to personal safety created by risk that intruder will harm
occupants as well as risk that occupants will react violently to the
invasion].) As we discuss above, despite
the absence of physical injuries, the lower court found the victims suffered
ongoing psychological harm as a direct result of defendant’s crime. The trial court also considered defendant’s
drug use described in the probation officer’s report, but concluded that while
drug and alcohol addiction can be a mitigating factor in some cases, it did not
mitigate defendant’s conduct here because of his “repeated failure to take
action to deal with his alleged addiction[.]â€
(See Martinez,
addiction is not necessarily regarded as a mitigating factor when a criminal defendant
has a long-term problem and seems unwilling to pursue treatmentâ€].) From this, we conclude the nature of
defendant and his offense supported his sentence.
As
to the second factor, comparing defendant’s sentence with the punishments for
other offenses, defendant compares in isolation the sentence for his most
recent offense to crimes that carry heavier sentences, such as first degree
murder, which carries an indeterminate sentence of 25 years to life. (§ 190, subd. (a).) However, the proper comparison must include
“not only his current offenses, but also his recidivism.†(People
v. Cartwright (1995) 39 Cal.App.4th 1123, 1136; see also
Cal.App.4th 524, 571.) For example, in
convictions for assault with a deadly weapon, robbery, and attempted
robbery. He compared his Three Strikes
life sentence for methamphetamine possession and interference with an executive
peace officer to that of a first-time offender convicted of voluntary
manslaughter, urging that the latter would receive a shorter sentence. The Martinez
court noted that the proper comparison is to a “recidivist killer†whose
punishment would be the same as the defendant’s under California’s Three
Strikes law. (Ibid.) Similarly here, the
proper comparison is to an offender with two strikes who, like defendant,
commits an additional serious or violent felony. Because that third felony would trigger the
same sentence defendant received for his current burglary conviction, this
factor demonstrates proportionality.
Defendant
focuses particularly on the third Martinez
factor, namely that his sentence in California is far greater than what he
would receive in other states for the same offense. Defendant argues other states impose
indeterminate life sentences only for aggravated felonies, while California
allows a life sentence for any third felony.
Louisiana and Oklahoma have “washout†periods after which prior felonies do not
count against a defendant for strike purposes.
He argues this supports a finding that his sentence was cruel or
unusual. However, this court has previously
acknowledged this practice in other states and nonetheless affirmed a sentence
under the Three Strikes law. (
Finally,
defendant points to other states’ sentencing schemes for habitual offenders and
argues they are more lenient for various reasons, including lower maximum
sentences, lower mandatory minimums, and earlier parole eligibility. These same claims were considered and
rejected in Martinez after an
exhaustive review of the sentencing regimes in other states. (Martinez,
supra, 71 Cal.App.4th at pp.
1512-1516.) The Martinez court noted California is actually more lenient than other
states in certain respects. For example,
California’s Three Strikes law allows for the possibility of parole, while
antirecidivism laws in other states such as Louisiana and Mississippi do
not. (Id.
at p. 1516.) The court also reasoned
California’s law is not as draconian as others because section 1385,
subdivision (a), empowers trial courts to strike prior felonies “in furtherance
of justice,†as informed by the spirit of the Three Strikes statute. (Martinez,
supra, at p. 1515, citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 529-530.) While the court recognized California’s Three
Strikes scheme is one of the strictest in the nation, it noted the
Legislature need not conform to the laws of other states and has broad
authority to set sentences. (
‘courts should be reluctant to review legislatively mandated terms of
imprisonment, and . . . successful challenges to the proportionality of
particular sentences should be exceedingly rare.’ â€], quoting
374.)
We
find the reasoning of Martinez
persuasive and conclude this third factor does not support defendant’s argument.
we do not find defendant’s sentence excessive, the mere fact that his sentence
might be harsher under California law
is unavailing.
Based
on the foregoing reasons, we find defendant’s sentence was not cruel or
unusual.
B.
Restitution Fine (§ 1202.4, subd. (b))
Defendant
challenges the imposition of a $10,000 restitution fine based on a failure to
consider defendant’s ability to pay.
Defendant relies on Southern Union
Co. v. United States (2012) 567 U.S. __, 132 S.Ct. 2344 (
determination of facts affecting the restitution fine amount should have been
decided by a jury. Alternatively,
defendant argues that, to the extent his claims are forfeited, his trial counsel
provided ineffective assistance.
At
the time of defendant’s sentencing, section 1202.4, subdivision (b), required
the trial court to impose a restitution fine between $200 and $10,000
unless “compelling and extraordinary reasons†exist for not doing so. (Former § 1202.4, subd. (b).) While a defendant’s inability to pay can be
considered when increasing a fine beyond the statutory minimum, it “shall not
be considered a compelling and extraordinary reason not to impose a restitution
fine.†(§ 1202.4, subd. (c).) When determining the amount of the fine, the
court must consider “any relevant factors, including, but not limited to, the
defendant’s inability to pay, the seriousness and gravity of the offense and
the circumstances of its commission, any economic gain derived by the defendant
as a result of the crime, the extent to which any other person suffered losses
[tangible or intangible] as a result of the crime, and the number of victims
involved in the crime.†(§ 1202.4, subd.
(d).) The court need not conduct a
separate hearing to determine the fine, nor make express findings regarding the
factors considered in determining the fine.
(Ibid.) Indeed, the court may determine the amount of
the fine by formula. (§ 1202.4, subd. (b)(2).)
1.
Forfeiture and Southern
Union Co. v. United States (2012) 567 U.S. __
We
agree with the People that defendant forfeited most claims on this point by
failing to object during sentencing.
(See People v. Nelson (2011)
51 Cal.4th 198, 227.) We will, however,
consider defendant’s claim based on Southern
Union because that case was decided after his
In
Apprendi v. New Jersey (2000) 530
U.S. 466, the United States Supreme Court held that a jury must decide beyond a
reasonable doubt any fact that increases a criminal penalty beyond a statutory
maximum. (Id. at p. 490.) In
Union, supra, 567 U.S. at p. __ [132
S.Ct. at pp. 2352, 2357].) Defendant
argues the jury should have decided the amount of the restitution fine because
it increased his sentence. This argument
was recently addressed and rejected by the Second District in
346, 351-352. In Kramis, the court explained that Apprendi and Southern Union
do not apply unless a court imposes a penalty that exceeds a statutory range.
fine in Kramis, the court held the
fine was within the statutory range, did not implicate Apprendi or Southern Union,
and therefore did not need to be decided by a jury. (Id. at
pp. 351-352.)
Like
the fine in Kramis, the trial court
here exercised discretion within the statutory range and imposed a $10,000
restitution fine. Although the fine
constitutes the statutory maximum, it does not exceed the maximum and
apply. Defendant’s argument must fail.
2.
Ineffective Assistance of Counsel
Defendant
argues his trial counsel provided ineffective assistance by failing to object
to the amount of the restitution fine based on defendant’s inability to
pay. To prevail, defendant must show
both that his trial counsel’s performance was deficient and that the deficiency
prejudiced defendant. (
216-217.) To prove prejudice, defendant
must affirmatively show a reasonable probability that, but for his trial
counsel’s errors, the result would have been different. (Id. at
pp. 217-218.) A reasonable probability
is one “ ‘sufficient to undermine confidence in the outcome.’ †(Id. at
p. 218, quoting Strickland v. Washington
(1984) 466 U.S. 668, 693-694.)
We
need not determine whether trial counsel’s failure to object was defective
because even assuming counsel’s deficient performance, defendant suffered no
prejudice. Had defendant’s counsel
preserved an objection to the amount of the restitution fine, the amount of the
fine would be subject to an abuse of discretion standard on appeal. (Nelson,
supra, 51 Cal.4th at p. 227.) In reviewing the amount of the restitution
fine, many factors in section 1202.4, subdivision (d), support the trial
court’s decision. Defendant’s burglary
was a serious offense and was but the latest crime in a long history of
recidivism. The pecuniary impact to the
victims from the loss of the laptop and cellular phone was substantial. And while the victims suffered no physical
harm, the court found they suffered psychological harm as a result of the
burglary. Based on these facts, it was
not an abuse of discretion for the trial judge to impose a $10,000 restitution
fine. Thus, defendant has not met his
burden to show ineffective assistance of counsel.
C.
Victim Restitution (§ 1202.4, subd. (f))
Defendant
challenges the amount of victim restitution he was ordered to pay to Kapelowitz
($639) and Roberge ($2,600). Defendant
first argues Apprendi and
of victim restitution be determined by a jury.
He also argues the court abused its discretion in determining the amount
of restitution. Pursuant to section
1202.4, subdivision (f), the court must order full restitution for any economic
loss “based on the amount of loss claimed by the victim or victims or any other
showing to the court.â€
Defendant’s
Apprendi claim fails because that
line of cases applies only to facts affecting the imposition of
“punishment.†(People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184.) In Chappelone,
the First District, encountering an identical claim, surveyed United States
Supreme Court cases as well as California cases and concluded victim
restitution did not constitute punishment because its primary purpose is to
provide compensation to victims rather than to punish defendants. (Ibid.) That victim restitution might serve a
secondary purpose of deterrence does not convert it into a form of punishment
implicating the Sixth Amendment jury right.
(Ibid., citing
7, 35-36.) We agree with the First
District’s reasoning and therefore find no Sixth Amendment violation.
Defendant
next argues the trial court abused its discretion in setting the amount of
victim restitution based solely on information from the probation report. We disagree.
The contents of a probation report constitute “ ‘prima facie evidence of
loss’ †and, in the absence of any contrary information filed by defendant,
allowed to rely on that report in setting the amount of victim
restitution. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319-1320, quoting
1539, 1543.) For this reason, we find no
abuse of discretion.
D.
Criminal Justice Administration Fee
Defendant’s
final argument is that the trial court erred by imposing a criminal justice
administration fee without determining defendant’s ability to pay. Disposition of this issue is controlled by
the California Supreme Court’s recent decision in People v. McCullough (2013) 56 Cal.4th 589, where the Court held a
challenge to a criminal justice administration fee is forfeited if there is no
objection in the trial court.
defendant did not object below, his argument is forfeited.
As
for the People’s request that we amend the sentencing minute order and abstract
of judgment to conform to the oral order, review of the documents indicates
they both reflect the oral order to pay a $129.75 criminal justice
administration fee. Thus, no amendment
is necessary.
III.
disposition
For the foregoing reasons, the
judgment is affirmed.
____________________________________
Grover,
J.
____________________________
Premo,
Acting P.J.
____________________________
Mihara, J.
Penal Code.
states, in relevant part: “[I]f a defendant has two or more prior serious
and/or violent felony convictions as defined in subdivision (d) that have been
pled and proved, the term for the current felony conviction shall be an
indeterminate term of life imprisonment with a minimum term of [¶] . . . (ii) .
. . 25 years.â€
