P. v. Rico
Filed 12/13/12
P. v. Rico 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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 PEOPLE,
Plaintiff and
Respondent,
v.
REYNALDO SALDANA RICO,
Defendant and
Appellant.
F063173
(Super.
Ct. No. BF125457A)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)
James F.
Johnson, 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 October 21,
2008, Reynaldo Saldana Rico beat his wife.
willful infliction of corporal injury and found a great-bodily-injury
allegation true. He admitted an
both as a serious-felony prior and as a strike prior, and admitted a
domestic-violence prior. The court
imposed and stayed a five-year serious-felony-prior term on the attempted
second degree robbery prior and imposed an aggregate sentence of 12 years.
On his first appeal,
Rico challenged the sentence, arguing that the court had no authority to stay the five-year
serious-felony-prior term on the attempted second degree robbery prior. The Attorney General agreed. We concurred, affirmed the judgment, vacated the sentence, and remanded for resentencing. (People
v. Rico (Mar. 21, 2011, F059362) [nonpub. opn.].)
After remand, the
court declined to strike Rico’s strike prior and imposed an aggregate sentence
of 12 years. On his second appeal, he
argues that by not striking his strike prior the court committed an abuse of discretion that constitutes constitutionally
disproportionate punishment under both the federal
and state constitutions. We affirm.
BACKGROUND
On March 25, 2009,
the district attorney filed an information charging Rico with committing
assault with a deadly weapon (count 1; Pen. Code, § 245, subd. (a)(1)),
corporal injury on a spouse (count 2; § 273.5, subd. (a)), and willful child
endangerment (count 3; § 273a, subd. (b)) on October 21, 2008. The information alleged, in counts 1 and 2,
willful infliction of domestic-violence
great bodily injury
(§ 12022.7, subd. (e)) and a 1996 attempted second degree robbery prior as a
strike prior (§§ 211, 212.5, subd. (c), 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and, in count 2, a 2008 willful infliction of corporal injury on a spouse prior as a domestic violence prior (§§ 273.5, subds. (a),
(e)(1)). On November 9,
2009, the district attorney filed an amended information adding the allegation,
in counts 1 and 2, of a 1996 attempted second degree robbery prior as a
serious-felony prior (§§ 211, 212.5, subd. (c), 667, subd. (a)).
On November 12,
2009, Rico admitted, while the jury was deliberating, a 1996 attempted second
degree robbery prior, in counts 1 and 2, as
both a strike prior (§§ 211, 212.5, subd. (c), 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and a
serious-felony prior (§§ 211, 212.5, subd. (c), 667, subd. (a)) and a 2008 willful-infliction-of-corporal-injury-on-a-spouse prior, in count 2, as a domestic-violence prior (§§ 273.5,
subds. (a), (e)(1)). Shortly afterward,
the jury found him guilty in count 2, found the domestic-violence
great-bodily-injury allegation true in count 2, and found him not guilty in
counts 1 and 3.
On December 18,
2009, Rico requested the exercise of the court’s discretion to strike his
strike prior. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (
by the court, the rejection of his request is inferable from the court’s
subsequent doubling of his sentence pursuant to the three strikes law. On January 12, 2010, the court imposed an
aggregate sentence of 12 years – eight years (double the four-year midterm) on
the willful infliction of corporal injury (§§
273.5, subds. (a), (e)(1)) and four years (the midterm) consecutively on the
great-bodily-injury enhancement (§ 12022.7, subd. (e)) – and imposed and stayed a five-year term on the
serious-felony-prior enhancement (§ 667, subd. (a)).
On January 13, 2010, Rico filed his
opening brief. On September 20, 2010,
the Attorney General filed the respondent’s brief. On October 13, 2010, Rico filed the
appellant’s reply brief. On March 21,
2011, we affirmed the judgment, vacated the sentence, and remanded for resentencing. (People
v. Rico (F059362).)
On August 19, 2011, Rico requested the exercise of the court’s discretion to strike his
strike prior. (See Romero, supra, 13
Cal.4th at p. 504; § 1385, subd. (a).)
The court declined to do so and imposed an aggregate sentence of 12
years – four years (double the two-year mitigated term) on the willful
infliction of corporal injury (§§ 273.5,
subds. (a), (e)(1)), three years (the mitigated midterm) consecutively on the
domestic-violence great-bodily-injury enhancement (§ 12022.7, subd. (e)), and five
years consecutively on the serious-felony-prior enhancement (§ 667, subd. (a)).
DISCUSSION
Rico argues that by not striking his strike prior the court committed an abuse of discretion that constitutes constitutionally
disproportionate punishment under both the federal and state constitutions. The Attorney General
argues the contrary. We agree with the
Attorney General.
Before striking a strike prior, the court has the duty to consider, in light of the defendant’s new felony, strike priors,
background, character, and prospects, if he or she is outside the spirit of the
three strikes law, in whole or in part, so as to justify sentencing as if he or
she had fewer strike priors or no strike priors at all. (People
v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) On appellate review of a court’s decision
not to strike a strike prior, the “deferential abuse of discretion standardâ€
applies. (Id. at p. 371.) Two
fundamental precepts govern appellate review.
(Id. at p. 376.)
First,
the party attacking the sentence has the burden to show clearly that the
decision was irrational or arbitrary. (
376.) In the absence of that showing,
the appellate court presumes the court below acted to achieve legitimate sentencing
objectives and will not set aside its decision on appeal. (Id. at
pp. 376-377.) Second, the appellate
court has no right to substitute its judgment for that of the court below, so
the judgment cannot be reversed merely because reasonable people might
disagree. (Id. at p. 377.) Taken
together, the two precepts establish that a court commits no abuse of
discretion “unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.â€
(Ibid.)
Before the
original sentencing hearing, Rico’s attorney filed a motion asking the court to
consider striking the strike prior. He
emphasized that, after Rico’s release on parole in 2000 for the attempted second degree robbery prior, he “became a certified
electrician earning over $32.00 per hour.â€
At the hearing, he acknowledged that Rico “has had some
issues. He has a strike from 1996, 13
years ago, now 14 years ago, and he does have two prior spousal abuse
convictions against the same victim, as well as four pending cases for violating
a restraining order.†Even so, he “has
gone a long ways towards reforming his life since the 1996 incident,†his
attorney argued, especially with reference to his “substantial alcohol and drug
problem.†His attorney characterized him
as “a person who grabbed his wife by the arms, causing her bruising on the
arms,†and as “a good candidate for probation.â€
At the
resentencing hearing, Rico’s new attorney asked the court to consider
the arguments that his former attorney had made at his original sentencing
hearing. After the court granted
her request, she submitted the matter.
Before the hearing, the court had read the probation officer’s
report. At the hearing, the court read a
letter Rico had written to the court.
After stating that the “facts and circumstances of the current offenseâ€
indicate a “greater of [sic] danger
to society,†that there were “significant injuries to the victim,†and that,
“even though the old strike was older, he did have a string of convictions on a
relatively consistent basis,†the court declined to strike Rico’s strike prior.
On appeal, Rico
acknowledges the observation in the probation officer’s report that after he
committed the attempted second degree robbery prior in 1996, for which he was released on parole in 2000, he committed two willful inflictions of corporal injury, one in
2000, the other in 2004. (§ 273.5, subd.
(a).) He emphasizes that he was “highly
intoxicated†at the time of his commission of the crime and that there is no indication he “attempted to evade or resist the arresting
officers.†He insists that the court
“failed to properly consider all aspects of the current offense,†that the
court “considered few if any actual background, character, and prospects factsâ€
about him, and that if those facts were taken into consideration “the evidence
was balanced in favor of striking the prior strike.†He argues
that the court improperly characterized his attempted second degree robbery
prior as a “serious and violent offense – and/or violent offense.†A “grant of leniency,†he
claims, would not only “benefit both [him] and society†but also avoid “an
unjust sentence.â€
Rico’s argument
conflates striking a strike prior with declining to do so. The law requires a court to state reasons for
the former but not for the latter. (
944, 960, citing Williams, supra, 17
Cal.4th at p. 159; Romero, supra, 13
Cal.4th at pp. 530-531; People v. Mack (1986)
178 Cal.App.3d 1026, 1032-1033.) A court
is presumed to have considered all relevant factors in the absence of an
affirmative record to the contrary. (
305, 310.) So a court’s comment on one
factor does not imply the court’s lack of consideration of other factors. (Ibid.) Our reading of the record shows that the
court simply misspoke by characterizing Rico’s attempted second degree robbery
prior as a “serious and violent
offense†and immediately corrected itself by characterizing his prior as a
serious “and/or violent
offense.†(Italics added; see § 1192.7,
subds. (c)(19), (c)(39).) Even if we
were to indulge Rico’s alternate reading of the record, a result more favorable
to him was not reasonably probable. (See
People v. Skenandore (1982) 137
Cal.App.3d 922, 925, citing People v.
Watson (1956) 46 Cal.2d 818, 836.)
The record shows
that Rico – a serial domestic violence offender with an escalating level of
violence – held his wife on the bed and repeatedly hit her with his hands, that
she struggled to kick him away and duck his swings, and that he hit her with an
iron, lacerating her forehead. On that
record, he fails to persuade us that the court’s ruling declining to strike his
strike prior was so “irrational or arbitrary
that no reasonable person could agree with it.â€
(Carmony, supra, 33 Cal.4th at
p. 377.)
So we turn to Rico’s argument that by not striking his strike prior the court inflicted constitutionally disproportionate punishment under both the
federal and state constitutions. No procedural principle is more familiar to the United
States Supreme Court than that the failure to assert a federal
the right of appeal. (
725, 731; cf. United States v. Young
(1985) 470 U.S. 1, 15-16.) Although Rico
had the duty to raise his fact-specific constitutional argument at sentencing,
he did not do so. (See People v. Norman (2003)
109 Cal.App.4th 221, 229; People v. DeJesus
(1995) 38 Cal.App.4th 1, 27.) Quite to the contrary, his attorney
characterized an aggregate sentence of 12 years as an “appropriate†alternative
to the aggregate sentence of 18 years the probation officer recommended.
Even if
Rico had not forfeited his constitutional challenge, he could not have prevailed. Only a sentence that is so “‘disproportionate
to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity’†is constitutionally excessive. (In re
Nuñez (2009) 173 Cal.App.4th 709, 724-725 (Nuñez), quoting In re Lynch (1972)
8 Cal.3d 410, 424 (Lynch).) To secure relief, Rico must demonstrate that
his punishment is disproportional in light of (1) the nature of the offense and
his background, (2) the punishment for more serious offenses, or (3) the
punishment for similar offenses in other jurisdictions. (Nuñez,
supra, at p. 725, citing Lynch,
supra, at pp. 425, 431, 436.) By
briefing not one of those factors, he fails to overcome his considerable burden
of showing the constitutional disproportionality of his sentence to his level
of culpability. (See
with exquisite rarity in the case law.â€
(People v. Weddle (1991) 1
Cal.App.4th 1190, 1196.) Rico’s
disproportionality claim is meritless.
DISPOSITION
The judgment is
affirmed.
Franson, J.
discussion (post).
