P. v. Putney
Filed 7/2/12 P. v. Putney CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS EARL
PUTNEY,
Defendant and Appellant.
F062165
(Super. Ct. No. F10905950)
THE COURT
APPEAL
from a judgment of the Superior Court of
County. Don D. Penner, Judge.
Robert
Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On November 29, 2010, appellant Thomas Earl Putney was charged in a
criminal complaint with possession of a
dirk and dagger. (Former Pen. Code,
§ 12020, subd. (a).)
name="_ftnref2" title="">[1] The complaint further
alleged three prior serious felony convictions within the meaning of the three
strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). At his arraignment the following day, Putney
pled not guilty to the charge and denied all allegations.
On the date set
for the preliminary hearing, December
17, 2010, Putney withdrew his not guilty plea and waived both his
constitutional rights. He entered an
unconditional no contest plea to the charge and admitted his three prior
strikes. After Putney signed a change of
plea form, the court accepted the plea, found it was made knowingly,
intelligently and voluntarily and there was a factual basis for it. Defense counsel informed the court the change
of plea was against his advice.
Putney was
sentenced on January 21, 2011. The trial
court denied defense counsel’s Romero
three of his prior strikes, and sentenced him to a term of 25 years to
life. Putney filed a timely notice of
appeal, but did not include a certificate of probable cause. This court subsequently granted his
application for permission to seek a certificate of probable cause. Putney filed a request for a certificate with
the trial court, which it granted.
On appeal,
Putney contends (1) defense counsel was ineffective in failing to declare a
doubt as to his competency, (2) the trial court abused its discretion in
declining to grant his Romero motion,
and (3) his sentence violates the prohibition against cruel and unusual
punishment and the double jeopardy clause.
We disagree and affirm.
The
following facts are derived from the probation officer’s report. The incident occurred at Coalinga State
Hospital, a secured maximum security forensic hospital that houses sexually
violent predators, mentally disturbed
offenders, and state prisoners with mental disorders. On November 19, 2010, hospital police
officers observed four inmates engaged in suspicious behavior in the
hallway. Officers heard several people
yelling and a group of individuals exchanging punches with one another. One of those individuals, Putney’s
co-defendant, inmate Joseph Taylor, was seen holding a weapon. Taylor refused to drop the weapon when
ordered to do so and continued running down the hallway chasing another
inmate. Taylor approached an officer and
lunged at him with the weapon, striking him in the center abdomen with what
officers believed was a knife, and then continued to run down the hallway. Officers deployed pepper spray and eventually
subdued Taylor, at which time he was found to be unarmed.
About 30 minutes
later, another officer made contact with Putney. Although Putney initially denied having a
weapon, officers searched Putney and found a homemade manufactured weapon six
inches long on his person. The blade was
flat, had a dark tint, and was sharpened on both ends. Putney told an officer he was just protecting
his “homey,†Taylor, and “I didn’t use it, but would have.â€
According to the
probation report, as a juvenile Putney had sustained petitions for arson (§ 452,
subd. (b)), vehicle theft (Veh. Code, § 10851) and battery (§§ 242, 243, subd.
(c)), and was committed to the California Youth Authority (CYA) in 1987. He was paroled from CYA in November 1988, and
in March 1990, was discharged from CYA parole under dishonorable
circumstances. One month later, he was
arrested and convicted of a misdemeanor weapons charge (former § 12020, subd.
(a)). This conviction was followed by a
string of arrests and the following convictions: (1) possession of drug
paraphernalia (Health & Saf. Code, § 11364) in July 1990; (2) fighting
(§ 415) and misdemeanor weapons charge (former § 12020, subd. (a)), in August
1990; and (3) misdemeanor weapons charge (former § 12020, subd. (a)) in
September 1990, for which he received two years probation.
Putney’s
three strike priors arose from offenses committed in 1990. Between June and August 1990, Putney forcibly
raped and sodomized two young boys, ages four and nine. The nine-year-old boy suffered anal trauma
and internal hemorrhoids as a result of Putney’s forcible rape. The four-year-old, who suffered scarring on
his anus, related that Putney threatened him, saying “he better not tell.†In a psychological evaluation of Putney,
performed by Dr. Ronald Byledbal, M.D. in February 1991, Putney was diagnosed
as a pedophile. According to Dr.
Byledbal, “the pedophilic oriented towards male victims has a higher recidivism
and is more recalcitrant to treatment.â€
In 1991, Putney was convicted of three counts of section 288,
subdivision (a), and sentenced to 10 years in prison.
In 1992, while
in prison, Putney was convicted of being a prisoner in possession of a weapon
(§ 4502) and sentenced to an additional two years. In February 2003, Putney was found to be a
sexually violent predator pursuant to Welfare and Institutions Code section
6600, and ordered to be confined for two years in a state hospital. From 2003 to the present offense, Putney has
been under continual commitment at both Coalinga and Atascadero State
Hospitals.
Putney told the
probation officer that he was placed in foster care when he was nine years old
after his grandmother physically abused him and he was left alone at home. Putney said his uncles sexually abused him
when he was five and eight. Putney had a
history of suicide attempts, beginning at age 12. He attempted suicide in 1991, and again while
in prison in 1995 and 1999. Putney
stated he had received different diagnoses ranging from bipolar to psychotic
and schizophrenic disorders, and he had sometimes seen people and heard
voices. At the time of the probation
department report, Putney said he was not suicidal and was not receiving
medication. In the past he had been off
and on medication. He stopped taking
medications three months before because he was getting extremely paranoid that
the medication was hindering his thoughts and causing nerve damage.
When interviewed
by the probation officer on December 29, 2010, Putney said he saw the fight; he
did not see Taylor with a weapon and he did not give him one. Putney admitted having a knife himself and
said it had been in his possession for over a year. He hid the knife in different places so he
would not be caught with it. He claimed he
needed a weapon for protection because he had been abused by staff, inmates and
police officers over the years.
DISCUSSION
Ineffective Assistance of Counsel
Putney
contends trial counsel rendered constitutionally ineffective assistance by
failing to declare a doubt as to his competency and request a competency
hearing. As the record contains no
substantial evidence of incompetency and nothing to suggest a hearing would be
favorable, his claim fails.
In order to
successfully claim ineffective assistance of counsel, Putney must prove two
components: “First, the defendant must
show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.†(Strickland v.
Washington (1984) 466 U.S. 668, 687.)
Putney
cannot show deficient performance because there was insufficient evidence of
incompetency to trigger counsel’s obligation to declare a doubt. Indeed, “If an attorney has doubts about his client’s competence but
those doubts are not supported by medical reports or substantial evidence, he
does not render ineffective assistance by forgoing an evidentiary
hearing.†(People v. Garcia (2008) 159 Cal.App.4th 163, 172 (
(1967) 67 Cal.2d 105.) “Competent
counsel is not required to make all conceivable motions or to leave an
exhaustive paper trail for the sake of the record. Rather, competent counsel should
realistically examine the case, the evidence, and the issues, and pursue those
avenues of defense that, to their best and reasonable
under the circumstances.†(
Weaver (2001) 26 Cal.4th 876, 931; People v. Frye (1998) 18 Cal.4th
894, 985, disapproved on another point in People
v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.)
Putney asserts there was ample evidence of
mental illness and questionable competence that required defense counsel to
seek the advice of an expert to determine whether he was competent. But there is nothing on this record to
suggest that Putney’s competence was questionable. To establish incompetence, “[t]he evidence
must indicate that defendant is incapable of comprehending the charges against
him and of cooperating with counsel in his defense.†(People
v. Dudley (1978) 81 Cal.App.3d 866, 872.)
In taking Putney’s change of plea, the trial court asked Putney several
times whether he understood the consequences of his plea; each time Putney
responded that he did. In addition, the
trial court specifically asked defense counsel if he was satisfied Putney
understood the nature and terms of the plea and its consequences; defense
counsel responded “I do, Your Honor.â€
The court painstakingly questioned Putney on each of his constitutional
rights to ensure he understood each right he was waiving; Putney answered each
question directly and appropriately in the affirmative. Given Putney’s
responses, his background and history of
support a finding of current incompetence.
(People v. Hayes (1999) 21
Cal.4th 1211, 1281 [“Evidence regarding past events that does no more than form
the basis for speculation regarding possible current incompetence is not
sufficient.â€].)
The record also does not suggest that Putney
was incapable of assisting counsel.
Putney confirmed to the trial court before taking his change of plea
that he had enough time to discuss the issue with his attorney, he understood
his attorney adamantly disagreed with his decision, as well as the attorney’s
reasoning, but he did not agree with it “[f]or personal reasons.†Defense counsel also confirmed that he had
advised Putney numerous times about the consequences of the plea, which Putney
would confirm if asked. At sentencing,
defense counsel remarked that while talking with Putney, he found him to be “an
intelligent individual.†Nothing that
occurred during the hearings in this matter suggests that Putney was incapable
of comprehending the charges against him or of assisting defense counsel.
Moreover, Putney
cannot establish the outcome would have been different if his trial counsel had
declared a doubt as to his competency.
“[Penal Code s]ection 1368 requires a competency hearing when the court
declares a doubt as to competence.
[Citation.] The court did not
declare a doubt. A declaration of doubt
by counsel alone is not sufficient to trigger a statutory
doubt arises in the mind of the trial judge and is then confirmed by defense
counsel. [Citation.] ‘If . . . a doubt arises in the mind of the
judge as to the mental competence of the defendant, he or she shall . . .
inquire of the attorney for the defendant whether, in the opinion of the
attorney, the defendant is mentally competent.’ [Citation.] If, in response, ‘counsel informs the court
that he or she believes the defendant is or may be mentally incompetent, the
court shall order that the question of the defendant’s mental competence is to
be determined in a hearing.
[Citation.] ‘A doubt in the mind
of counsel, or anyone else other than the trial court is not sufficient to
require a hearing on the issue of sanity under the statute.’†(Garcia, supra, 159 Cal.App.4th at pp. 169–170; see also
1060, 1111-1112 [judge not compelled to order competency hearing based on
defense counsel’s opinion the defendant might be incompetent; defendant’s claim
his trial counsel was ineffective for failing to request a competency hearing
failed where record did not demonstrate a substantial doubt as to the
defendant’s competency].) Given the lack
of substantial evidence of Putney’s incompetence, there is no reasonable
probability the outcome would have been different if counsel had declared a
doubt as to his competence.
Putney contends
the trial court abused its discretion when it denied his Romero motion. He argues he
was outside the spirit of the three strikes law because the instant crime was a
wobbler offense that did not involve sophistication, planning, violence or the
infliction of harm, his prior convictions were remote, his record is devoid of
any other serious or violent felonies before or after 1991, and he had a long
term mental illness. We disagree.
The standard of
review of the abuse of discretion aspect of the trial court’s ruling is
deferential. (People v. Carmony (2004) 33 Cal.4th 367, 371 (Carmony I); Romero, supra,
13 Cal.4th 497; § 1385.) Two fundamental
precepts guide our review. First, the
party challenging the sentence has the burden of clearly showing the sentencing
decision was irrational or arbitrary. (Carmony
I, at p. 376.) In the absence of the
requisite showing, we will presume the court acted to achieve legitimate
sentencing objectives and will allow the sentencing decision to stand. (Id. at
pp. 376-377.) Second, we have no
authority to substitute our judgment for that of the trial court, so we cannot
reverse a sentencing decision merely because reasonable people might
disagree. (Id. at p. 377.) “Taken
together, these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.†(
Since all
discretionary authority is contextual, we look to the legal principles and
policies germane to the trial court’s ruling.
(Carmony I, supra, 33 Cal.4th
at p. 377.) The intent of the three
strikes law was to restrict the discretion of the trial courts in sentencing
repeat offenders. (Ibid.) The three strikes law
does not offer a discretionary sentencing choice, as do other sentencing laws,
but instead establishes a sentencing norm, carefully circumscribes the power of
the trial courts to depart from the norm, requires an explicit justification of
any ruling that departs from the norm, and creates a strong presumption that
any sentence conforming to the norm is rational and proper. (Id.
at pp. 377- 378.)
At the
sentencing hearing, defense counsel orally moved to dismiss two or all three of
the strike priors. Counsel argued this
case was an appropriate one for relief because:
(1) Putney’s 1991 prior convictions were remote in time; (2) he had a
history of mental illness, including bipolar and schizophrenic disorder; and
(3) Putney was an intelligent individual who, if given a determinate sentence,
could progress with treatment to the point of full rehabilitation, especially
in light of the statement in the probation report that his recidivism rate was
quite low. The prosecutor countered that
Putney’s 1991 convictions were for “horrific†crimes and while those crimes
were older, Putney had been in custody continuously since then, this was not
the first time he had a weapon while in custody, and he was a significant
danger to the community and the type of individual for which the three strikes
law was written.
The court denied
the motion, stating: “The defendant in
this case did say at the time that the knife was taken off of him, that while
he hadn’t used the knife he . . . indicated that he would have. He – as pointed out by the District Attorney,
he has a prior conviction for a similar offense when he was serving his prison
term on the strike allegations in 1992 – I believe that was at Folsom. I’m not sure – wherein he was convicted of
possession of a weapon while serving that ten-year prison term. [¶]
But by far the most important factor for the court is – are the facts as
listed in the – or provided in the Probation report that summarizes the conduct
behind those strike allegations and the convictions that he’s admitted back in
the 1990s. One victim in that case was a
9-year-old boy who suffered anal trauma and internal hemorrhoids as a result of
the assault that he was a victim of at that time. The other victim was four years old. And the defendant threatened that
four-year-old if he were to tell anyone about the crime that the defendant
committed with respect to that particular victim. [¶] He
has other criminal conduct and juvenile conduct that’s set out in the probation
report. And I do incorporate those
statements by reference. [¶] But by far the most salient points for the
court is the nature of the crimes – the nature of the strike allegations that
he has admitted. I also know that from
the probation report the defendant was abused as a child. Lost his father at the age of, I believe it
was, six years old. He was in foster
care from the age of 8 to approximately 18.
He has also said he was sexually abused by his uncles at the age of five
and eight. That there have been several
suicide attempts. And he has been
diagnosed with bipolar and schizophrenia and that he suffers from those mental
diseases. [¶] On balance – and I also note that the strikes
are 20 years old. But as pointed out
again by the District Attorney Mr. Putney has been either in prison or
restrained of his liberty at the Coalinga State Hospital since that time. And he has incurred another felony conviction
after he was incarcerated on the strike cases and sentenced to state
prison. [¶] Having all of those factors and
consideration, I cannot say that this
defendant is outside the spirit of the California Three Strikes law. And the invitation to exercise discretion
under 1385 to strike any of those strikes is denied.â€
On appeal,
Putney reiterates most of the arguments he made to the trial court, i.e. that
his prior convictions are remote, his crime was not serious, he suffered from a
long term mental illness,
and it had been 19 years since his last offense. The trial court, however, rejected each of
these contentions and found Putney’s ongoing pattern of criminality confirms he
still represents a danger to society.
Since he fails to discharge his burden on appeal of clearly showing the
sentencing decision was irrational or arbitrary, we will presume the court
acted to achieve legitimate sentencing objectives and will allow the sentencing
decision to stand.
Cruel and Unusual Punishment
We also reject
Putney’s claim that his 25-year-to-life sentence was constitutionally
disproportionate. In determining whether
punishment is constitutionally disproportionate, the courts examine the nature
of the offense and offender, the punishment the same jurisdiction imposes for
other offenses, and the punishment other jurisdictions impose for the same
offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291, overruled on another
ground by Harmelin v. Michigan (1991)
501 U.S. 957, 964-965; In re Lynch
(1972) 8 Cal.3d 410, 425-427.) A
punishment involving “unnecessary and wanton infliction of pain†or “grossly
out of proportion to the severity of the crime†violates the Eighth Amendment. (Gregg
v. Georgia (1976) 428 U.S. 153, 173.)
A punishment “so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human dignityâ€
violates article I, section 17 of the California Constitution. (In re
Lynch, supra, 8 Cal.3d at p. 424,
fn. omitted.)
California
statutes imposing harsher punishment on recidivists have long withstood
v. Weaver (1984) 161 Cal.App.3d 119, 125-126, and cases cited.) Putney argues his possession of the knife in
the present case was a wobbler offense which involved no violence or physical
harm, and when considered in conjunction with his background, character, and
prior offenses, it is clear that his 25-year-to-life sentence shocks the
conscience and is grossly disproportionate.
We disagree. The primary goals of
a recidivist statute “are to deter repeat offenders and, at some point in the
life of one who repeatedly commits criminal offenses serious enough to be
punished as felonies, to segregate that person from the rest of society for an
extended period of time.†(
284-285.) Defining that point in one’s
life and setting that time are both “matters largely within the discretion of
the punishing jurisdiction.†(
and unusual punishment under the federal Constitution nor cruel or unusual
punishment under the state Constitution.
(U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; see
20-31; Lockyer v. Andrade (2003) 538
U.S. 63, 66-77; People v. Martinez
(1999) 71 Cal.App.4th 1502, 1516-1517.)
Putney contends
his sentence violates the double jeopardy clause because his past offenses were
the only significant factor which supported his 25-year-to-life sentence under
the three strikes law. We disagree.
The double
jeopardy clause does not prohibit the imposition of enhanced punishment under a
recidivist statute. (
389, 400; People v. White Eagle
(1996) 48 Cal.App.4th 1511, 1520 (White
Eagle).) “Recidivist statutes do not
impose a second punishment for the first offense in violation of the double
jeopardy clause of the United States Constitution. [Citation.]
Moreover, the double jeopardy clause does not prohibit the imposition of
multiple punishment for the same offense where the legislature has authorized
multiple punishment.†(
In support of
his double jeopardy objection, Putney cites People
v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony
II), in which the court stated:
“Past offenses do not themselves justify imposition of an enhanced
sentence for the current offense. [Citation.] The double jeopardy clause prohibits
successive punishment for the same offense.
[Citations.] The policy of the
clause therefore circumscribes the relevance of recidivism. [Citations.]
To the extent the ‘punishment greatly exceeds that warranted by the
aggravated offense, it begins to look very much as if the offender is actually
being punished again for his prior offenses.’â€
(Id. at p. 1080.)
While the court
in Carmony II loosely peppered its
analysis with double jeopardy terminology, it decided the case on the grounds
of cruel and unusual punishment (
“‘It is axiomatic that cases are not authority for propositions not
considered.’†(Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1153.) Thus, Carmony
II does not stand as authority for the proposition that a three strikes
sentence may violate double jeopardy proscriptions. Moreover, the court in Carmony II recognized that recidivists could be punished more
severely than first time offenders without violating the prohibition against
II, supra, at p. 1079.)
Here, Putney was
convicted of being in possession of a knife after sustaining previous
convictions for committing lewd or lascivious acts (§ 288, subd. (a)) and being
in possession of weapon while in prison (§ 4502). Thus, Putney continues to show that he is a
recidivist, making the enhancement of his sentence under the three strikes law
particularly appropriate. The imposition
of Putney’s current sentence, pursuant to the three strikes law, does not
violate double jeopardy proscriptions.
DISPOSITION
The judgment is
affirmed.
Franson, J.
references are to the Penal Code.
