P. v. Ochoa

Filed 1/3/08 P. v. Ochoa CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Alfred Ochoa appeals from the judgment entered following conviction by a jury of possession of methamphetamine. (Health & Saf. Code,  11377, subd. (a).) The court sentenced him to prison for 26 years to life. Appellant contends that the court erroneously failed to suppress statements he made to the police in violation of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), and that his sentence violated his constitutional right to be free from cruel and/or unusual punishment. We affirm.

FACTS

Ventura County Sheriff Deputies Schierman, Rush and Paris were seeking appellant for a parole violation on May 11, 2005. At approximately 10:00 p.m., they found him inside Sunny Tarian's home at 2535 Eucalyptus in Oxnard. Appellant was standing in the living room, wearing long, dark pants, when Tarian opened the door. He ran toward the back of the house. Rush and Schierman found him in a bedroom, wearing only a shirt and boxer shorts. They arrested him and took him outside.

Appellant asked the deputies to retrieve his sweat pants from inside the house. With Tarian's permission, Schierman reentered the house to look for appellant's pants. He found a pair of blue jeans lying "crumpled" on the back bedroom floor. They felt warm when Schierman picked them up. He took them to appellant and asked if they were his pants. Appellant said, "No."

Schierman found a baggie of methamphetamine inside a small "coin" pocket of the blue jeans. The methamphetamine weighed 0.22 grams. Schierman found other items in the blue jeans, including an electronic vibrator, a spoon, a razor blade container, and a wallet with several items bearing appellant's name. Addressing appellant, Schierman said something like, "This is your wallet in the pants." Appellant said something like, "I guess they are mine," or "They are mine."

DISCUSSION

Appellant contends that the court erroneously failed to suppress statements he made to the police in violation of his Miranda rights. (Miranda v. Arizona, supra, 384 U.S. 436.) Specifically, he complains that the court should have excluded his statement that the wallet recovered from the blue jeans and/or the blue jeans belonged to him because that statement was obtained in violation of his Miranda rights. We disagree.

A defendant who is in custody must be given Miranda warnings before law officers may interrogate him. (Rhode Island v. Innis (1980) 446 U.S. 291, 297; People v. Haley (2004) 34 Cal.4th 283, 300-301.) Appellant argues that Schierman's statements to him about the wallet and items bearing his name, in light of appellant's earlier denial that the blue jeans belonged to him, constituted an interrogation because the statements were reasonably likely to elicit an incriminating response. Schierman did not pose the statements as questions, and the statements "did not call for an incriminating response." (Haley, at p. 302.) However, Schierman's statements concerning the items retrieved from the blue jeans were neither express questions nor the "functional equivalent of interrogation." (U.S.v. Moreno-Flores (9th Cir.1994) 33 F.3d 1164, 1169.)

Furthermore, in this case, even if the statements were admitted in violation of Miranda, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) When the deputies arrived at Tarian's home, appellant was in the living room, wearing long, dark pants. He ran from the deputies and was wearing only boxer shorts and a shirt when they reached him. The strongest evidence linking appellant to the blue jeans (which held methamphetamine) was the wallet inside them with several items bearing his name. That wallet, the blue jeans and Schierman's testimony about their location would have been admissible in any event. Such evidence left no doubt that the blue jeans belonged to appellant. No prejudice resulted from admitting the challenged statements.

We also reject appellant's contention that his life sentence for his current relatively minor, passive and nonviolent methamphetamine possession offense is cruel and/or unusual punishment. The court found that he had two prior forcible rape convictions and two prior oral copulation convictions, and that he had served a prior prison term. (Pen. Code,  261, subd. (a)(2); 288a, subd. (c); 667.5, subd. (b).)[1] After denying appellant's Romero motion to strike the prior strikes pursuant to section 1385, the court sentenced him to 25 years to life under the three strikes law, plus one year for the prior prison term. (People v. Romero (2002) 99 Cal.App.4th 1418;  667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).) Standing alone, the usual penalty for his crime would be 16 months, or two years or three years in prison. ( 18; Health & Saf. Code,  11377.)

The Eighth Amendment to the United States Constitution provides that there "shall not be . . . cruel and unusual punishments inflicted." The United States Supreme Court has repeatedly held that the imposition of a lengthy prison sentence on a repeat offender imposed under a recidivist statute does not constitute cruel and unusual punishment. (Harmelin v. Michigan (1991) 501 U.S. 957; Hutto v. Davis (1982) 454 U.S. 370; Rummel v. Estelle (1980) 445 U.S. 263.) In noncapital cases, the United States Supreme Court has consistently deferred to state legislatures to determine the appropriate length of prison sentences. Severe sentences imposed on repeat offenders promote a legitimate state interest in safeguarding society from crime. (Rummel, at pp. 274-276, 284.)

In Rummel, the United States Supreme Court held that it was not cruel and unusual to impose a life sentence under a Texas recidivist statute where the defendant was convicted of obtaining $120.75 by false pretenses. (Rummel v. Estelle, supra, 445 U.S. 263, 285, 265-266.) The defendant had previously been convicted of passing a forged check in the amount of $28.36 and of fraudulently using a credit card to obtain $80 worth of goods or services. (Ibid.) In Hutto, the United States Supreme Court rejected an Eighth Amendment challenge to a 40-year prison term and a $20,000 fine for possessing and distributing nine ounces of marijuana. (Hutto v. Davis, supra, 454 U.S. 370, 371-372, 374.) In Harmelin, the United States Supreme Court upheld a sentence of life without possibility of parole for possessing 672 grams of cocaine. (Harmelin v. Michigan, supra, 501 U.S. 957, 961, 994-996.)

More recently, in Ewing v. California (2003) 538 U.S. 11, the United States Supreme Court upheld a 25-year-to-life sentence under the California three strikes law for a defendant who shoplifted golf clubs worth approximately $1,200, and had prior burglary and robbery convictions. The court confirmed that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences, but that successful challenges outside the context of capital punishment are exceedingly rare. (Id. at p. 21, citing Rummel v. Estelle, supra, 445 U.S. 263, 271-272.) In a companion case, Lockyer v. Andrade (2003) 538 U.S. 63, the Supreme Court upheld two consecutive 25-year-to-life sentences under the three strikes law for a defendant who stole $150 worth of videotapes, and had three prior first degree burglary convictions.

Although appellant's recent possession offense is relatively minor, his criminal history includes two forcible oral copulation convictions and two forcible rape convictions. The probation report reflects that he used knives and screwdrivers to threaten the minor victims of his prior sex offenses and choked one of the victims and threatened to kill her and her family. He served 12 years in prison for those crimes. While in custody for the current offense, appellant was cited for several offenses, including witness intimidation and possession of marijuana and other contraband (altered razors and cord). He committed the current offense while on parole and he had previously violated parole. The severity of his current sentence properly took into account his prior convictions under the three strikes law. Comparing his current crime and criminal history with those of the defendants in Andrade and Ewing, we cannot say that his sentence is grossly disproportionate to his criminal culpability.

We also reject appellant's claim that his sentence violates the California Constitution's prohibition against cruel or unusual punishment. (Cal. Const., art. I,  17.) The court properly based his sentence on his current crime, recidivist behavior, and lack of regard for rehabilitation. Appellant misplaces his substantial reliance on People v. Carmony (2005) 127 Cal.App.4th 1066. The current offense in Carmony involved a "harmless technical violation of a regulatory law." (Id. at p. 1072.) Carmony, a sex offender, registered his correct address with law enforcement one month before his birthday but failed to "update" his registration with the identical information within five working days of his birthday. (Id. at p. 1071.) Appellant's current offense was a drug offense, not a "harmless technical violation." Further, appellant had a history of engaging in violent behavior while under the influence of drugs.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

John E. Dobroth, Judge

Superior Court County of Ventura

______________________________

Lyn A. Woodward, 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, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.