P. v. Montez

Filed 10/15/08 P. v. Montez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Charles L. Peven, Judge. (Retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

Jose Cesar Montez appeals from the judgment entered following his conviction after a jury trial on one count of inflicting corporal injury on a cohabitant (Pen. Code,  273.5, subd. (a)),^[1]with findings by the court in a bifurcated proceeding he had suffered four prior serious or violent felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Montez contends his indeterminate sentence of 25 years to life in state prison constitutes cruel and unusual punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Evidence Presented at Trial

a. The Peoples case

Montez and his girlfriend, Allison Cortes, were living with Maria Avelar and her children. Late in the evening of December 31, 2006 Montez and Cortes had an argument in their bedroom. Montez wanted Cortes to accompany him to the liquor store; Cortes refused because Montez had been drinking. Montez became angry and started yelling at her. They left the house and continued to argue in the driveway. Montez then hit Cortes on her head with a metal toy. Gabriel, Avelars son, saw Montez strike Cortes twice with the object. As a result of the attack, Cortes suffered two large gashes on her head that required stitches; the injuries left scars on Cortes.

After Montez and Gabriel left for the liquor store, the police were called. Montez was arrested when he and Gabriel returned from the store.

b. The defense case

Montez did not testify in his defense. One of his relatives, Julian Perez, testified Montez had been with him all day on December 31, 2006. Around 11:00 p.m. Perez and his girlfriend, Mayra Flores Duran, drove Montez home to get his stereo with the intention of returning to Perezs apartment. Montez entered the house with Duran, who went inside to use the bathroom; Perez waited in the car. When Montez came back to the car with the stereo, Cortes appeared outside the house. Cortes was crying and said she had slipped and fallen.

Duran testified she first saw Cortes inside the house. Cortes appeared to be feeling dizzy and was crying. The left side of her forehead was scraped and bleeding. Cortes told Duran she had slipped and fallen down the stairs. After Cortes declined her assistance, Duran left with Perez. At this point Montez decided to remain at home rather than to leave with Perez and Duran.

2. The Verdict and Sentencing

The jury found Montez guilty of inflicting corporal injury on a cohabitant. In a bifurcated proceeding the trial court found true the special allegations Montez had suffered four prior strike convictions.^[2] After denying Montezs motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss three of the four prior strike allegations, the trial court sentenced him under the Three Strikes law to an indeterminate state prison term of 25 years to life.

CONTENTIONS

Montez contends his sentence of 25 years to life for inflicting corporal injury on a cohabitant, a crime that would ordinarily have a maximum sentence of five years, is disproportionate to his current offense and personal history and, as such, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and cruel or unusual punishment in violation of the California Constitution.^[3]

DISCUSSION

Federal courts have consistently rejected claims that life terms imposed on recidivists violate the ban on cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution. (Ewing v. California (2003) 538 U.S. 11, 29 [123 S.Ct. 1179, 155 L.Ed.2d 108] [In weighing the gravity of [defendants] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislatures choice of sanctions.]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 155 L.Ed.2d 144]; Harmelin v. Michigan (1991) 501 U.S. 957, 965 [111 S.Ct. 2680, 115 L.Ed.2d 836]; Rummel v. Estelle (1980) 445 U.S. 263, 284 [100 S.Ct. 1133, 63 L.Ed.2d 382].) Neither Montezs prior criminal history nor the nature of his current offense warrants a different conclusion in this case.

California appellate courts likewise have consistently rejected claims that sentences imposed under recidivist statutes violate the California Constitutions prohibition against cruel or unusual punishment. (E.g., People v. Cooper (1996) 43 Cal.App.4th 815, 820, 826-827; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Under state law Montez must overcome a considerable burden in challenging his penalty as cruel or unusual (People v. Wingo (1975) 14 Cal.3d 169, 174), demonstrating the punishment is so disproportionate to the crime for which it was imposed it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) In assessing these claims the Lynch Court identified three factors for reviewing courts to consider: (1) the nature of the offense and the offender; (2) how the punishment compares with punishments for more serious crimes in the jurisdiction; and (3) how the punishment compares with the punishment for the same offense in other jurisdictions. (Id. at pp. 425-427.)

The first prong of the Lynch test does not support a finding of disproportionality. Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commission offenses, including the defendants motive, the manner of commission of the crimes, the extent of the defendants involvement, the consequences of his or her acts and his or her individual culpability, including factors such as the defendants age, prior criminality, personal characteristics and state of mind. (People v. Lucero (2000) 23 Cal.4th 692, 739.)

Montez attempts to minimize his blameworthiness for inflicting corporal injury on Cortes. He argues this offense, while violent, was prompted by his personal relationship with her and his intoxication and anger at the time; and it was a single incident after which he immediately left. Montez also maintains he was 40 years old, with a minimal criminal history; and the four prior aggravated assault convictions making him subject to sentencing under the Three Strikes law arose out of one incident.

The evidence established, however, when Cortes refused his demands, Montez attacked her with a makeshift weapon; struck her twice, causing substantial lacerations to her head; and immediately left without rendering aid. As the trial court observed, although Montezs criminal history is not extensive, both his prior criminality and the present offense show his propensity for violence. Montez lashes out at those (particularly women) who do not comply with his demands. At least one of his 2004 aggravated assault convictions involved a female victim. When Montez committed those four counts of aggravated assault, he was on probation for committing misdemeanor corporal injury on a cohabitant in 2003, involving a different female victim. Four months after he was released from state prison on parole in August 2006, Montez committed the present violent offense against Cortes, yet another female victim. When the nature of the offense and offender is considered, Montezs sentence is neither shocking nor inhumane. (See, e.g., People v. Dillon (1983) 34 Cal.3d 441, 479, 482-488 [determinations whether a punishment is cruel or unusual may be based solely on the nature of the offense and offender]; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)

The second prong of the Lynch analysis involves a comparison of the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) The third prong of Lynch calls for comparison of the California punishment with punishment for the same crime in other states. (Ibid.) Montez does not address either of those issues, asserting only that his sentence of 25 years to life is grossly disproportionate to the current offense alone. As we have explained, Montez is being punished for both his current offense and his prior criminal behavior under a California statutory scheme that expressly mandates more severe punishment for habitual criminals. Such statutory schemes have repeatedly withstood challenge on the ground they constitute cruel or unusual punishment. (See, e.g., People v. Cooper, supra, 43 Cal.App.4th at pp. 826-827; People v. Kinsey, supra, 40 Cal.App.4th at pp. 1630-1631; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.)

In sum, Montez has not demonstrated his case is that exquisite rarity where the sentence is so harsh as to shock the conscience or offend fundamental notions of human dignity. (See People v. Kinsey, supra, 40 Cal.App.4th at p. 1631.) Accordingly, there is no basis to find the sentence unconstitutional under either the United States or California Constitutions. (Lockyer v. Andrade, supra, 538 U.S. at p. 77; People v. Cooper, supra, 43 Cal.App.4th at pp. 826-827.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

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^[1] Statutory references are to the Penal Code.

^[2]The information also specially alleged Montez had suffered two prior convictions for domestic violence ( 273.5, subd. (e)(1)). The court found Montez had committed one of those offenses as one of the alleged prior strike convictions. No finding was made as to the remaining section 273.5, subdivision (e)(1), allegation.

^[3] Montez does not challenge the trial courts denial of his Romero motion.