P. v. Reed

Filed 11/20/09 P. v. Reed 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kings County. Peter Schultz, Judge.

Elizabeth M. Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

In 1995, appellant, Donald Wayne Reed, was sentenced to a term of 25 years to life under the Three Strikes law on his conviction for possession of a sharp instrument while a state prisoner. (Pen. Code^[1],  4502.) The information had also alleged the following prior convictions: two for burglary in 1995 ( 459); two for robbery in 1988 ( 211); two more for burglary in 1988 ( 459); and one for grand theft of a firearm in 1988 ( 487, subd. (3)). At least two of these prior serious felony convictions were found to be true.

In 2007, appellant filed a habeas corpus petition in the superior court alleging that the sentencing court had not understood that it had discretion to strike one or more of the prior convictions. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) Following a hearing held in 2008, the court denied appellants request to strike his prior convictions.

Appellant contends the trial court abused its discretion when it refused to strike one or more of his prior convictions. Appellant further argues that the trial courts failure to exercise its discretion resulted in a cruel and unusual punishment. We disagree.

DISCUSSION

1. The trial court did not abuse its discretion when it denied appellants motion to strike his prior convictions.

Trial courts have limited discretion under section 1385 to dismiss prior convictions in three strikes cases. (Romero, supra, 13 Cal.4th at p. 530.) The trial courts decision to not strike a prior conviction is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) This review is guided by two fundamental precepts. First, the burden is on the defendant to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (Id. at pp. 376-377.)

Second, the decision will not be reversed merely because reasonable people might disagree. (People v. Carmony, supra, 33 Cal.4th at p. 377.) An appellate court has no authority to substitute its judgment for the judgment of the trial court. 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. (Ibid.)

The Three Strikes law was intended to restrict courts discretion in sentencing repeat offenders. (Romero, supra, 13 Cal.4th at p. 528.) The striking of a serious felony conviction is not a routine matter. Rather, it is an extraordinary exercise of discretion. (People v. McGlothin (1998) 67 Cal.App.4th 468, 474.) Thus, a trial court will only abuse its discretion in failing to strike a prior felony conviction in limited circumstances. (People v. Carmony, supra, 33 Cal.4th at p. 378.) These situations include where: the trial court was not aware of its discretion to dismiss; the trial court considered impermissible factors in declining to dismiss; or the sentencing norms produce, as a matter of law, an arbitrary, capricious, or absurd result under the specific facts of a particular case. (Ibid.)

At the Romero hearing, appellant admitted the prior crimes but denied that he personally injured anyone. Appellant further expressed deep remorse and noted that the crimes were drug induced. Finally, appellant submitted a transcript of a 2007 interview with two investigators from the district attorneys office wherein appellant cooperated with a state prison murder investigation. Appellant overheard the murder being committed in the cell next to his and provided an account of the attack to the investigators.

After reviewing the transcript, the court concluded that it would reconsider whether to dismiss appellants prior convictions under Romero and that it would take appellants subsequent favorable conduct into account. The court then ruled as follows:

The Court has considered the evidence of that subsequent favorable conduct that has been presented and I conclude that it would not be in the interest of justice to strike the prior felony conviction based on the nature and frequency of Mr. Reeds prior criminal behavior. The motion to strike the prior conviction is denied.

Contrary to appellants position, the trial court did not abuse its discretion in refusing to strike appellants prior convictions. This case is far from extraordinary.

Appellants criminal history is extensive. Seven prior felony convictions were alleged, including two armed robberies and four burglaries. Further, at least two of these prior crimes were violent. During each of the two jewelry store robberies, appellant threatened the lone salesperson with a handgun and attempted to either bind or gag her.

Moreover, appellants current offense demonstrates a continued course of violence. Appellant was found to have a six and one-half inch sharpened stabbing instrument concealed in his shoe while being processed out of the prison facility for the recreation yard.

Under these circumstances, the trial courts decision was not so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, 33 Cal.4th at p. 377.) Appellants status as a drug addict and his cooperation with law enforcement during his time in prison do not cause him to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack. (Id. at p. 378.)

2. The trial courts refusal to strike any prior convictions did not result in a cruel and unusual punishment.

Punishment under Three Strikes and other recidivist statutes is not inherently cruel and unusual. (Ewing v. California (2003) 538 U.S. 11, 25-31; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.) The purpose of a recidivist statute is to deter repeat offenders and to segregate from the rest of society those who repeatedly commit serious criminal offenses. (Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)

Appellant contends the circumstances of this case raise a strong inference of disproportionality. Appellant supports this claim by comparing his sentence with the lesser sentences imposed for much more violent and serious crimes such as second-degree murder, assault with acid, cruelty to a child, terrorism, and various sex crimes. He further notes that murder in the first degree is the only offense that carries penalties greater than the life sentence in this case.

However, appellants analysis is misguided. He ignores that he is being punished not only for his current offense, but also for his recidivism. Recidivism has long been recognized as a legitimate basis for increased punishment and California statutes imposing such increased punishment on habitual criminals have long withstood constitutional challenge. (Ewing v. California, supra, 538 U.S. at p. 25; People v. Cartwright, supra, 39 Cal.App.4th at pp. 1136-1137.) Appellant has failed to establish that his punishment as a recidivist offender is cruel and unusual.

DISPOSITION

The judgment is affirmed.

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^* Before Levy, Acting P.J.; Kane, J.; and Poochigian, J.

^[1] All further statutory references are to the Penal Code.