P. v. Carter
Filed 7/30/12 P. v. Carter CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
TAYLOR JUNIOR CARTER,
Defendant and Appellant.
B231589
(Los Angeles
County
Super. Ct. No. BA365737)
APPEAL from
a judgment of the Superior Court of
County, Gail Ruderman Feuer, Judge.
Affirmed.
Jennifer
Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Colleen M. Tiedemann and
Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
Defendant Taylor Junior Carter appeals his conviction for
one count of sale of a controlled
substance (Health & Saf. Code, § 11352, subd. (a)) and one count
of possession for sale of a controlled
substance (Health & Saf. Code, § 11351). Defendant contends that (1) the trial
court abused its discretion in failing to strike his strike priors and sentence
him to less than 25 years to life for the sale of 10 pills of Vicodin, and
(2) his due process rights were violated because he was not advised his
presumptive second strike case was going to be elevated to a 25-years-to-life
case after he elected to go to trial. We
affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant
was charged in a two-count information filed May 14, 2010 with one count of
offering to sell a controlled substance, hydrocodone, in violation of Health
and Safety Code section 11352, subdivision (a) and one count of possession for
sale of a controlled substance, hydrocodone, in violation of Health and Safety
Code section 11351, arising out of the December 11, 2009 sale of 10 Vicodin
tablets for which defendant had a valid prescription to an undercover
officer. The information charged
defendant had a prior conviction within the meaning of Health and Safety Code
section 11370.2, subdivision (a), and further alleged that defendant had five
prior strike convictions within the meaning of Penal Code sections 1170.12,
through (d), and 667, subdivisions (b) through (i).
1. Prosecution Case
On December
11, 2009, at about 6:50 p.m., defendant was in front of the Rite Aid Pharmacy
at Fifth and Broadway in Los Angeles.
Los Angeles Police Department Officers Mynerva Gramillo and Arthur
Gamboa were on undercover narcotics detail.
Officer Gramillo walked passed defendant and heard defendant say,
“‘pills.’” Defendant asked Officer
Gamboa, “‘do you need pills,’” and Officer Gamboa said “yes.” Officer Gamboa began to discuss the price of
pills with defendant, and Officer Gamboa and defendant agreed upon a price of
$30 for 10 Vicodin pills. Officer Gamboa
and defendant exchanged a packet of pills for which Officer Gamboa paid $30 in
“buy money.”
title="">[3] Defendant had a large orange pill container
in his hand that contained 63 additional Vicodin (hydrocodone) tablets.
defendant placed the money in his pants pocket.
Police use
one-way transmitters to transmit conversations to other officers, but the
transmitters do not record the conversation.
Officer Charles Baley remotely monitored a wire during the transaction,
and heard someone offer Officer Gamboa “10 Vicodins for $30,” to which Officer
Gamboa responded, “‘okay.’” Two other
officers working in tandem with Officers Gramillo and Gamboa placed defendant
under arrest. On defendant’s person,
police found both of the prerecorded “buy money” bills (a $20 bill and a $10
bill), the orange pill container with 63 pills, and additional currency.
In Officer
Gamboa’s opinion, defendant possessed the Vicodin tablets for sale because the
area is known for its sale of pills; defendant sold him some of the pills
defendant had in his possession; and defendant had in his possession bills of
small denominations consistent with the sale of pills. Further, the transaction was conducted in a
fashion similar to numerous other undercover drug buys Officer Gamboa had made.
On December
10, 2009, defendant’s doctor, Catherine Chien, M.D., prescribed Vicodin for
defendant to treat chronic lower back pain caused by degenerative disk
disease. Defendant had metallic
fragments in his lower back that resulted from a gunshot wound. Dr. Chien prescribed five tablets a day for a
30-day total of 150 tablets.
Case
Defendant
testified on his own behalf that he received $954 per month in Social Security
income. He has had severe back pain
since 1978. Dr. Chien prescribed him
Vicodin for the pain, and he took five pills per day. He denied selling the Vicodin on a regular
basis. Defendant received his
prescription in two bottles, one with 120 pills and one with 30 pills. He split the prescription between the two
bottles into two 75-pill allotments so he could carry one bottle at a time.
On the
evening of December 11, 2009, defendant was walking his dog at the corner of
Fifth and Broadway. The area was very
crowded. Defendant intended to go to the
7-Eleven across the street and get a drink so he could take a pill. Officer Gamboa came up to defendant and said,
“nice dog,” and spoke to defendant about his dog. Officer Gamboa said, “what are those,” referring
to defendant’s pills. Defendant
answered, “Vicodin,” and Officer Gamboa responded, “would you sell me
some” Defendant said, “this is my
medication,” and Officer Gamboa said, “I’ll give you $30 for 10.” Defendant reiterated, “this is my medication,”
but Officer Gamboa said, “my back is killing me, man, come
on . . . just 10. I
got $30 right here.” A minute after
defendant sold Officer Gamboa the Vicodin, he was arrested.
Defendant
denied he was standing on the corner asking people if they needed pills, and
asserted that the sale to Officer Gamboa was the only time he sold his Vicodin.
The jury
found defendant guilty of both counts. A
jury trial on defendant’s prior convictions found all true. After the trial court denied defendant’s
motion to strike his prior strike convictions pursuant to Romero v. Superior Court (1996) 13 Cal.4th 497 (
to a total term of 25 years to life on count one, and pursuant to section 654
stayed his sentence of 25 years to life on count two. The court struck the prior prison term
enhancement and the Health and Safety Code section 11370.2 enhancement.
I. REFUSAL TO STRIKE
PRIOR STRIKE PRIORS
Defendant
argues the trial court abused its discretion in failing to strike his prior
strike convictions because the possession and sale of 10 pills of Vicodin falls
outside the spirit of the “Three Strikes” law.
In so arguing, defendant distinguishes People v. Strong (2001) 87 Cal.App.4th 328 (Strong) and People v. Gaston (1999)
74 Cal.App.4th 310 (Gaston) on which
the trial court relied, and argues the relevant factors support striking the
priors and sentencing him as a second strike offender. He further argues the resulting sentence of
25 years to life violates the Eighth and Fourteenth Amendment and is cruel and
unusual punishment because the sentence is grossly disproportionate to the
crime committed and, because defendant was 62 years old at the time of
sentencing, sentences him to a virtual life sentence.
A. Factual Background
The
prosecution’s sentencing memorandum recommended that defendant be sentenced to
25 years to life under the Three Strikes law based upon his prior criminal
history, including the five prior strikes alleged, plus three years’ formal
probation for a Health and Safety Code section 11350, subdivision (a) violation
in 1987, and a two-year prison sentence for a Health and Safety Code section
11351 violation in 1988.
Further,
defendant had an extensive criminal history dating back to 1964, when he was
arrested for larceny in Virginia and received 12 months of probation. In 1965, while in custody, defendant received
a 12-month sentence for assaulting a guard; in 1968, 1971, and 1975, defendant
was convicted of charges of burglary and larceny, receiving a sentence of eight
years for the 1975 conviction. In 1979,
defendant was fined for a conviction of petty larceny; the same year, he was
arrested for possession of a controlled substance and credit card fraud. After moving to California in 1979, defendant
was convicted of misdemeanor possession of a syringe; in 1980, he received 12
months of probation for a petty theft conviction; in 1985, he received 24
months of probation for possession of a syringe; in 1987, he was convicted of a
Health and Safety Code section 11350, subdivision (a) violation and received
three years formal probation and 239 days in jail. In 1988, defendant was convicted of a Health
and Safety Code section 11351 violation, and was sentenced to two years in
prison concurrent with his sentence for his 1987 conviction. In 1989, defendant was in violation of his
parole for violations of Health and Safety Code section 11377 and Business and
Professions Code section 4149. In April
1989, defendant was arrested by BART police and convicted of a Health and
Safety Code section 11550 violation. In
March 1990, San Francisco police arrested defendant for assault, resulting in a
parole violation and reincarceration.
After defendant was released in May 1991, in 1992, defendant was
arrested twice in Oakland for violations of Penal Code sections 273.5,
subdivision (a) and 211, but charges were not filed. In October 1993, defendant was arrested for a
violation of Health and Safety Code section 11350, and convicted of violating
Business and Professions Code section 4149, for which he received 12 months of
summary probation and 30 days in jail.
In 1994, defendant committed the rape resulting in his five strike
priors conviction of 1996, receiving a sentence of 35 years; the sentence was
recalculated to 17 years in 1999.
Defendant was paroled in 2003. In
March 2005, defendant was arrested on a parole violation, and was sentenced to
eight months in prison, but after an appeal, the charge was dismissed. In August 2005, defendant’s parole department
found true that defendant had used cocaine, and parole was continued. In June 2006, defendant was arrested on a
parole violation, and received eight months in jail. Defendant’s parole was discharged on
September 8, 2007.
Defendant’s
rape conviction in 1996 resulted from an incident in June 1994, when defendant
raped and beat the victim Jennifer G. in Long Beach at his apartment. Jennifer G. met defendant in front of a
thrift shop, where defendant was working on some bicycles. Defendant offered to buy her a beer, and they
went to a liquor store. The victim
followed defendant to his apartment; sometime during their walk to defendant’s
apartment, he hit her. The defendant and
Jennifer G. sat on defendant’s couch and smoked some crack. Defendant attacked her, licking her face,
buttocks, and vagina, and forced his penis into her vagina; he also forced her
to orally copulate him. During the
assault, defendant hit her numerous times, and hit her with a crate, tools and
his fists. He yelled at her continually,
and said, “I should kill you.” The
victim escaped the next day. After the
attack, Jennifer G. had two black eyes, abrasions, and cuts and bruises all
over her body.
Defendant
made a Romero, supra, 13 Cal.4th 497 motion,
requesting the court to dismiss his five prior strike convictions. He argued that pursuant to
record, the minor and nonaggravating nature of the current offense was a
powerful factor that supported dismissal of the strike priors. Defendant pointed out that as charged, he
faced 10 years without the strike priors, and such a sentence would certainly
serve justice in light of the nature of the current offenses and the fact he
was 62 years old; in addition, the prior strikes were all based on the same
incident and involved the same victim, and were out of character for him
considering his other convictions for drug offenses and larceny. Since his parole in 2003, he was not found to
be in violation, and after his discharge from parole in September 2007 until
the current offense, he has not been charged with a crime.
At the
stated: “[T]his will be Mr. Carter’s
third strike. And there’s no question
that the current offense is not a serious or violent felony and
is . . . in terms of the severity of the offense, is on the
lighter side.
[¶] . . . [¶] . . . I recognize
a sentence at this time in Mr. Carter’s life of 25 to life, and in this case I
believe there would be four years of enhancements on top of that, is a
significant sentence for anyone, and especially for someone who is in his
sixties.” The court applied the factors
of People v .Williams (1997) 17
Cal.4th 148, 161, finding that the nature of the current offense was the
strongest factor in favor of defendant.
However, with the respect to “[t]he nature and circumstances of the
prior serious or violent felony, this is where the court has difficulty. The strikes we are talking about have to do
with a 1994 arrest for rape, oral copulation, and other sexual-related
offenses. It’s a total of five counts on
which he was convicted, each of which is itself a strike. The 1994 arrest was over a two-day period
with a series of events that are very serious and troubling in nature
concerning how they are committed. It’s
a very violent crime and caus[ed] enormous harm to the victim in that crime.”
The court
found defendant’s case to be very similar to Strong, supra, 87
Cal.App.4th 328, a Third Appellate District case, and Gaston, supra, 74
Cal.App.4th 310, a Second Appellate District case, noting that defendant “has a
criminal history dating back to the 1960’s, including many violent crimes;”
during the period 1965 to 1985, defendant had been convicted of 10 felonies and
numerous misdemeanors; in 1987 and 1988 defendant had further drug convictions;
in 1990 he violated his parole with an assault; in 1993 he suffered another
drug conviction; the rape occurred in 1994, and defendant was paroled in 2003. After this parole, the court noted that “at
most, three years passed between the time when [defendant] was released from
custody in the strike cases and being picked up on this case.” The court summarized, “[from] 1965 until the
date of the strikes in this case, and then from this date until this charge,
Mr. Carter has been . . . convicted of and sentenced
to custody time for almost that entire period.”
The court recognized defendant had a substance abuse problem, but noted
that in addition to the drug charges he had been convicted of significant
violent felonies. “[T]he purpose of the
Three-Strikes law is to ensure a longer sentence for people who are repeat
offenders in this revolving door type of situation, and Mr. Carter is exactly
in that situation. [¶] My concern is that if he were sentenced and
the court were to strike the strikes—and I would note I’d have to strike a
number of strikes to get it down even to being a second-strike case, and then
he serves ten years. I have every reason
to believe that from the day he’s released, given his history, he will continue
to commit crimes, whether they are theft-related, drug-related, or violent
felonies, and that is the concern of the court.”
The court
stated that defendant’s age and the fact he would be quite old by the time he
was eligible for parole was in his favor, but “in terms of his character and
background, everything in his record points to the fact that it’s likely that
he would reoffend from the time he’s released, and under that scenario it is
difficult, but I think not supported by the evidence for the court to find that
he’s outside the spirit of the law.”
Defendant
testified to his criminal history and his upbringing. Defendant admitted that the first time he
went to prison was in 1965 when he was 15 years old for stealing a car. He contends he did not try to escape, but
“got into an altercation with a correctional officer, and they called it
assault.” He became addicted to heroin
inside the penitentiary, and when he was released he was 17 years old. He asserted his other cases were related to
drugs and possession of paraphernalia, and that his burglary charge was based
on looting during a riot. Further, the
1994 rape was his only violent crime.
Defendant detailed the difficulties of being a registered sex offender
under Megan’s law because the authorities listed the victim in his rape case as
being under the age of 14; as a result defendant had a difficult time in prison
and upon his release.
The court
responded that nonetheless, given the nature of the original offense, the rape,
and defendant’s parole violations, it would not be appropriate for the court to
strike any of defendant’s strikes. “In
light of the nature of [the 1994 rape], [defendant’s] very lengthy criminal
record, the fact that the crime is also tied to drug use, the court has every
reason to believe that when Mr. Carter is released and he goes back to drug use
another violent offense could occur. [¶] So for those reasons and the reasons I set
forth earlier, the finding of the court is that the Romero[, supra, 13
Cal.4th 497] motion is denied.”
B. Striking of Prior Strikes
The stated
purpose of the Three Strikes law is to “ensure longer prison sentences and
greater punishment for those who commit a felony and have been previously
convicted of serious and/or violent felony offenses.” (§ 667, subd. (b).) A trial court may exercise its discretion to
strike a prior conviction in furtherance of justice. (§ 1385, subd. (a); Romero, supra,
“[I]n ruling whether to strike or vacate a prior serious and/or violent
felony conviction allegation or finding under the Three Strikes
law . . . or in reviewing such a ruling, the
court . . . must consider whether, in light of the nature
and circumstances of his present felonies and prior serious and/or violent
felony convictions, the particulars of his background, character, and
prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit,
in whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.” (People
v. Williams, supra,
interests of society must be considered when determining whether to strike a
prior strike. (Id. at pp. 158–161.)
The court
must consider all relevant factors.
Focusing on a single factor, such as the nature of the current
conviction, to the exclusion of other factors, is error. (People
v. Carmony (2004) 33 Cal.4th 367, 379.)
Factors relevant to the nature of the prior strikes include their
remoteness in time (Strong,
involved violence or the use of a weapon (People
v. Myers (1999) 69 Cal.App.4th 305, 308–310), whether multiple convictions
arose out of the same act (People v.
Benson (1998) 18 Cal.4th 24, 36, fn. 8), defendant’s past criminal record (
1418, 1434), the increasing or decreasing severity of defendant’s record (
drug addiction and whether he or she has taken steps to ameliorate it (
p. 322), whether the new offense is the same as prior offenses (
p. 344), and the nature and circumstances of the current offense,
defendant’s age, background, character, and prospects (People v. Williams, supra,
1245, 1251).
“‘The
striking of a prior serious felony conviction is not a routine matter. It is an extraordinary exercise of
discretion, and is very much like setting aside a judgment of conviction after
trial.’ [Citation.]” (People
v. McGlothin (1998) 67 Cal.App.4th 468, 474.) It is a conclusion “that an exception to the
[sentencing] scheme should be made because, for articulable reasons which can
withstand scrutiny for abuse, this defendant should be treated as though he
actually fell outside the Three Strikes scheme.” (Ibid.) We review the trial court’s ruling for an
abuse of discretion. (
503; Romero, supra, 13 Cal.4th at p. 530.)
In
310, the defendant had an extensive criminal career, including two crimes
classified as serious felonies, as well as a dozen other felonies; he had been
in prison on multiple separate occasions, in addition to his return to prison
for violation of parole; and he had been in county jail during a good portion
of the time between these confinements.
Defendant’s criminal history commenced in 1972 when he was convicted of
grand theft; in 1974, he was convicted of grand theft auto and assault with a
deadly weapon (two different incidents); in 1976, he was convicted of receiving
stolen property; in 1977, convicted of three separate offenses (grand theft,
grand theft auto, and driving under the influence); in 1978, convicted of grand
theft; and in 1981, the defendant was convicted of the strike offenses,
kidnapping and robbery. In 1990,
defendant was paroled, and the same year was convicted of joyriding; in 1991,
he was convicted of burglary, and in 1994, following release from prison, he
was convicted of joyriding; in 1996, he suffered another conviction for joyriding,
and in 1998, the present case, he was convicted again of joyriding. (Id. at
p. 317.)
The
defendant was on parole when he committed the crime at issue, a violation of
Vehicle Code section 10851 (unlawful driving or taking of a vehicle). (Gaston,
supra, 74 Cal.App.4th at p.
313.) The trial court granted the
defendant’s motion to strike one of his priors, an armed robbery occurring more
than 10 years prior. The trial court relied
on the nonserious nature of the present crime, recognizing it was a felony, the
absence of the use of force in the present crime, and the defendant’s attitude
towards the offense. (
discretion in striking the strike, based on the defendant’s “unrelenting record
of recidivism, even while on parole or probation from previous felony
convictions. As we observed from the
outset, he is the kind of revolving-door career criminal for whom the Three
Strikes Law was devised.” (
received a number of breaks and has benefited from none of
them. . . . What comes through most prominently from
a review of all of the circumstances is that he has committed an unending series
of felonies, as well as other crimes, has been repeatedly punished for these
crimes, including the service of four prior prison terms, and has failed to
learn anything from the experience.
[¶] Accordingly, [defendant]
cannot reasonably be said to be outside the ‘spirit’ of the Three Strikes law,
in whole or in part.” (
Similarly,
in Strong, supra, 87 Cal.App.4th
328, upon which the trial court relied, the defendant had a 22-year criminal
record, including six felonies within the previous eight years and 12 misdemeanors. The defendant’s strike offense consisted of
an unprovoked assault with a knife on a bystander occurring three years before
the current offense, which was the sale of a substance falsely represented to be
cocaine in violation of Health and Safety Code section 11355. (Strong,
at p. 331.) The trial court struck the
strike finding it was “‘out of character’” with his prior offenses, and thus a
sentence under the Three Strikes law was inconsistent with that law’s spirit. (Id. at
p. 334.)
Reversing
the trial court, the Third Appellate District found the Three Strikes law did
“not offer a discretionary sentencing choice, as do other sentencing laws, but
establishes a sentencing requirement to be applied in every case where the
defendant has at least one qualifying strike, unless the sentencing court
‘conclud[es] that an exception to the scheme should be made
. . . .’ As our
Supreme Court concluded, ‘[p]lainly the Three Strikes initiative, as well as
the legislative act embodying its terms, was intended to restrict courts’
discretion in sentencing repeat offenders.’”
(Strong, supra, 87 Cal.App.4th at
pp. 337–338.) Applying this rationale,
the Court of Appeal found the trial court abused its discretion because the
defendant’s three-year-old strike offense, for which he was currently on parole
when the charged offense was committed, and all five of defendant’s felonies
had occurred in the previous eight years, meant that he was the kind of
“‘revolving door’” criminal for whom the Three Strikes law was designed. (Id. at
p. 340.)
On the
other hand, in People v. Saldana,
Appellate District case, on which defendant relies, the defendant was convicted
in 1994 of one count of possession of a controlled substance, heroin, in
violation of Health and Safety Code section 11350. The trial court granted the defendant’s
habeas petition striking prior strikes for a 1977 residential burglary
conviction and a 1981 robbery conviction on the basis that the current offense
was relatively minor, the burglary conviction was 16 years old, the defendant
was married with two children, and was older and less likely to commit
crimes. (Id. at pp. 623–624.)
“‘entire picture’” of defendant, the trial court did not abuse its discretion
in striking the prior strike. (
Here, we do
not find the trial court abused its discretion in refusing to strike
defendant’s prior strikes. The trial
court considered all factors relevant to the exercise of its discretion,
including those factors weighing in defendant’s favor (his age, the nonviolent
nature of the current crime), and those factors weighing against defendant (his
lengthy and continuous criminal record consisting of a pattern of drug and property
crimes extending over a 40-year period, and the seriousness of the strike
offenses themselves). Putting all these
factors together, as the trial court did here, and finding nothing in
defendant’s history, character or circumstances took him outside of the spirit
of the Three Strikes law, the defendant is more like the defendants in
Strong, supra, 87 Cal.App.4th 328 who
were career criminals with lengthy histories and repeated episodes of
crimes. In that respect, defendant is
unlike the defendant in People v. Saldana,
supra, 57 Cal.App.4th 620,
time, who did not have a lengthy record indicating he was a career criminal,
and who had a stable home life.
C. Cruel
and Unusual Punishment
Defendant
argues that his sentence of 25 years to life is grossly disproportionate to the
crime committed, and it offends fundamental
notions of human dignity to sentence a senior citizen to prison for the
rest of his life for the sale of 10 pills prescribed to him. Although defendant did not raise this issue
in the trial court, we consider it to forestall a claim of ineffective
assistance of counsel. (
1, 27.)
The Eighth
Amendment to the federal Constitution proscribes “cruel and unusual punishments
[and] contains a ‘narrow proportionality principle’ that ‘applies to noncapital
sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20 [123 S.Ct. 1179, 155
L.Ed.2d 108].) A proportionality
analysis requires consideration of three objective criteria, which include
“‘(i) the gravity of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdictions.’ [Citation.]”
(Id. at p. 22, quoting
[103 S.Ct. 3001, 77 L.Ed.2d 637].)
“‘[F]ederal courts should be reluctant to review legislatively mandated
terms of imprisonment, and . . . successful challenges to
the proportionality of particular sentences should be exceedingly rare.’” (Ibid.
at p. 22; see also Lockyer v. Andrade
(2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 155 L.Ed.2d 144] [“[t]he gross disproportionality
principle reserves a constitutional violation for only the extraordinary
case”].)
The
standard under the California Constitution to determine whether a sentence is
cruel or unusual is similar to the test under the Eighth Amendment of the federal
Constitution: a punishment may be cruel
or unusual if it is “so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human
dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) We look at the nature of the offense and the
offender as well as compare the punishments imposed within California for more
serious offenses and in other jurisdictions for similar offenses. (Id.
at pp. 425–428; see also People v.
Martinez (1999) 71 Cal.App.4th 1502, 1510.)
With respect to the nature of the offense and nature of the offender,
courts may consider the facts of the crime in question including the motive,
the manner, the defendant’s involvement and the consequences, as well as the
facts of the offender, including his culpability, prior criminality and state
of mind. (People v . Dillon (1983) 34 Cal.3d 441, 479.)
The purpose
of recidivist statutes is “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. This segregation and its duration are based
not merely on that person’s most recent offense but also on the propensities he
has demonstrated over a period of time during which he has been convicted of
and sentenced for other crimes.” (
284 [100 S.Ct. 1133, 63 L.Ed.2d 382].)
Under the federal Constitution, sentencing a three-time offender to a
life sentence was not cruel and unusual punishment where the crimes included
fraudulent use of a credit card, passing a forged check, and felony theft,
which together totaled less than $300. (
667, subds. (b)–(i)), it was not cruel and unusual punishment to sentence a
recidivist criminal to 25 years to life where the triggering offense was the
theft of three golf clubs. (
A term of 40 years for possession with intent to distribute and
distribution of marijuana was not cruel
and unusual punishment. (
S.Ct. 703, 70 L.Ed.2d 556].) Under the
California Constitution, the imposition of a 61-years-to-life term for an
offender convicted of two counts of residential burglary with two prior
convictions for the same offense was not cruel or unusual. (People
v. Ingram (1995) 40 Cal.App.4th 1397, 1415–1416, disapproved on another
ground in People v. Dotson (1997) 16
Cal.4th 547, 559, 560, fn. 8.) A
sentence of 25 years to life for an ex-felon in possession of a handgun who had
two prior robbery convictions was not cruel or unusual punishment. (People
v. Cooper (1996) 43 Cal.App.4th 815, 828.)
Here,
defendant’s criminal history dates back to 1965 and has been continuous,
primarily consisting of drug offenses and property crimes. At 62 years of age, defendant has shown no
signs of slowing down his criminal behavior, and indeed the instant crime is
one of the type of crimes defendant has committed numerous times over the
course of his lifetime. “Fundamental
notions of human dignity are not offended by the prospect of exiling from
society those individuals who have proved themselves to be threats to the
public safety and security. Defendant’s
sentence is not shocking or inhumane in light of the nature of the offense and
offender.” (People v. Ingram, supra,
40 Cal.App.4th at pp. 1415–1416.)
II. ELEVATION OF SECOND
STRIKE CASE TO 25 YEARS TO LIFE
Defendant
contends his due process rights were violated when his case, a presumptive
second strike case, went to trial as at 25-years-to-life case without notice to
him after he elected to go to trial. He
contends he had no notice that if he rejected a pretrial offer, his only option
would be to face a 25-years-to-life term.
He requests that we reverse his sentence and that on remand, it must be
reduced to no more than the maximum he would have received as a second strike
offender. Respondent contends defendant
forfeited the issue for failing to raise it in the trial court, and in any
event had notice his case would proceed as a third strike matter based on the
information and amended information, which both alleged prior strikes; the
second strike case policy was only a presumption; and the court at the various
hearings early on stated the case was potentially a third strike case.
A. Factual Background
At the
preliminary hearing held December 29, 2009, the trial court set bail at
$170,000, informing defendant that “this potentially is a third strike
case.” The court further advised
defendant that, “this county’s district attorney normally does not proceed as a
third strike case in these type[s] of cases.
But for purposes of bail, nonetheless those rules are followed.”
At
arraignment held January 12, 2010, defendant contends the prosecution offered
eight years with an admission of one of defendant’s strike priors. Defendant declined the offer with the belief
that he could have all his strikes set aside given his age and the nature of
the current offense.
name="_ftnref5" title="">[5]
During the
period March 16, 2010 through June 23, 2010, at five pretrial hearings,
according to defendant, the prosecution did not mention treating the case as a
third strike case. According to his
counsel, at some point during this pretrial period, the prosecution offered
defendant a plea to the low term on count two, doubled to four years at 80
percent with an admission of a strike prior.
Defendant again rejected the offer and the matter was set for
trial. Defendant counter offered five
years at 50 percent.
On June 23,
2010, defendant announced he was ready for trial. The matter trailed to June 29, 2010, and the
offers remained the same. According to
defendant, the prosecution did not inform him that it would proceed under the
Three Strikes law and seek a 25-years-to-life sentence. At the hearing, defendant informed the court
his last offer had been four years with a strike. Judge Klein turned to the prosecution and
said, “I assume this is a presumptive non-Three Strikes matter,” to which the
prosecution responded, “Yes.” The court
noted that according to its calculations, defendant faced a term of 16 years.
inclined to strike the strike. The court
noted that the offer was four years, and turned to defendant and asked, “Do you
want to go to trial and risk a judge giving you a very long sentence I don’t know what they’re going to do. You know the math. Or do you want to take this four-year
offer I saw what the strike is. That’s a very serious crime. It doesn’t go away.” Defendant stated he wanted to go to
trial. The court turned to trial setting
and reiterated, “We’re doing a presumptive non-third strike,” and stated, “Max
is, what, 16 years” The prosecution
reiterated that its offer was four years with the strike and defendant
countered with five years and no strike.
The court
informed defendant that the time he would be serving under either offer was not
that much different: If he served four
years with the strike that would entail, at 85 percent, a three and half-year
sentence. On other hand, he was facing a
maximum sentence of 16 years.
On July 1,
2010, the matter was sent to master calendar court for assignment to a trial
court. At that time, moments before
trial, defendant was informed that the prosecution would seek 25 years to life. Defendant requested more time to prepare his
case. The court continued the matter to
August 4, 2010, and sent it back before Judge Klein.
On August
4, 2010, defense counsel objected that he had not been informed until minutes before trial that the prosecution was
proceeding as a three strikes case and seeking 25 years to life based on the
“heinousness” of the rape case. The
court advised defendant that it recalled defendant’s offer was without strikes
and that the court advised him, “I wasn’t going to do it at that time. But when I send a case to [Department] 100,
that’s it. I don’t want a situation
where the defendant thinks maybe he can—I don’t know if this is what happened
or not—that maybe he can get sent to another court and get a better deal, and
if not, he comes back here and accepts the same deal. If that’s what he was thinking, that’s not
how I operate the courtroom.”
Defense
counsel advised the court that was not his tactic, and stated, “We’re here
because the people are proceeding on a life case for sales of Vicodin, which is
not the typical policy. So we’re in a
totally different position than we were as far as the amount of time and
exposure that [defendant] is facing than we were before we left. [¶] . . . [¶] So we’re not here to just negotiate. We’re asking the court to reconsider the
case, given the new circumstances.”
The court
stated, “But at this point, when I send it to [Department] 100, I’m not going
to engage in, ‘well, I’ll strike this and see if he is going to plead.’ I’m not going to do that. [¶] So
it would have to be an open plea. And I’ve
been here long enough. I think both
sides know my sentencing practices. I
also think—I’m not sure that—if you want to plead open, I think [Department]
100 would let you choose your court. I’m
not sure. . . . [¶]
So if Mr. Carter wants to do that, fine.
But what I know about this case, I’m just saying, I will not engage in
negotiations on any Romero[,
Defendant
requested and was granted additional time to prepare.
On January
20, 2011, the matter proceeded to trial.
The court stated that it had spoken to counsel in chambers and the last
offer from the prosecution was 25 years to life, and that because the parties
were “quite far apart,” the matter would proceed to trial. Defendant’s counsel advised the court that,
“I spoke with my client just in custody a few moments ago. He indicated to me he has absolutely no
desire to go forward with the jury trial.
He wants to plead on this matter.
I explained to him that at this point there is no offer to actually
plead to, but I did want to express his desire to the court and let the court
know that he has no desire to go forward with the jury trial.” The court stated, “So I guess the real
question is—well, there are two things.
First of all, a defendant always has the right to enter a plea to what
is charged in the information. That’s
something you can always do. The
question is whether you would get an indicated sentence from the court in
advance or whether the district attorney is prepared to make an offer in
advance.” The prosecution reiterated
that the last offer was 25 years to life.
Defendant
maintained in his motion to strike his strike priors that the prosecution’s
decision to proceed as a Three Strikes case was contrary to the district
attorney’s own “Three Strikes Policy,” which provided that if a defendant had
two or more qualifying prior felony convictions, the case was presumed to be a
second strike case if none of the charged offenses was a serious or violent
felony. Such presumption could be
rebutted if the current case involved the use of a firearm or deadly weapon,
injury to a victim, or a threat of violence.
Defendant asserted that the prosecution’s decision to proceed at trial
as a third strike case was vindictive.
At the
sentencing, the prosecution clarified why it was proceeding with a third-strike
case stating, “with regard to our office policy which was cited in the
[defendant’s] papers, you know, I’ll just point out that I believe that that’s,
frankly, neither here nor there for the purposes of this sentencing and that,
you know, our internal procedures have been followed in this case to the extent
that that’s relevant for a court, you know, looking at this later. [¶] My
understanding, in a nutshell, is that once the case was reviewed by our head
deputy, who’s the person who makes offers, and of the nature of the priors in
the case, became aware through the acquisition of the D.A. file which had
numerous materials, that at that time we felt that the case was a life case and
that’s why we proceeded the way we did.
So just so that is on the record and that is out there.”
B. Discussion
“[S]o long
as the prosecutor has probable cause to believe that the accused committed an
offense defined by statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests entirely in his
discretion.” (Bordenkircher v. Hayes (1978) 434 U.S. 357, 364 [98 S.Ct. 663, 54
L.Ed.2d 604] (Bordenkircher).) As explained in Wayte v. United States (1985) 470 U.S. 598, 607–608 [105 S.Ct.
1524, 84 L.Ed.2d 547], “[t]his broad discretion rests largely on the
recognition that the decision to prosecute is particularly ill-suited to
judicial review. Such factors as the strength
of the case, the prosecution’s general deterrence value, the Government’s
enforcement priorities, and the case’s relationship to the Government’s overall
enforcement plan are not readily susceptible to the kind of analysis the courts
are competent to undertake. Judicial
supervision in this area, moreover, entails systemic costs of particular
concern. Examining the basis of a
prosecution delays the criminal proceeding, threatens to chill law enforcement
by subjecting the prosecutor’s motives and decisionmaking to outside inquiry,
and may undermine prosecutorial effectiveness by revealing the Government’s
enforcement policy. All these are
substantial concerns that make the courts properly hesitant to examine the
decision whether to prosecute.”
Although
prosecutorial discretion is broad, it is not unfettered. Indeed, “[s]electivity in the enforcement of
criminal laws is . . . subject to constitutional
constraints.” (United States v. Batchelder (1979) 442 U.S. 114, 124–125 [99 S.Ct.
2198, 60 L.Ed.2d 755].) The decision to
prosecute may not be deliberately based upon an unjustifiable standard such as
race, religion, or other arbitrary classification, including the exercise of
protected statutory and constitutional rights.
(Wayte v. United States,
A denial of
due process in the form of a vindictive or retaliatory prosecution occurs when
a charging decision is motivated by a desire to punish the defendant for doing
something the law allows him to do. (
368, 372 [102 S.Ct. 2485, 73 L.Ed.2d 74] (Goodwin);
People v. Bracey (1994) 21
Cal.App.4th 1532, 1549.) As motives are
difficult to prove, the United States Supreme Court found it necessary to
presume a vindictive motive in certain cases where action adverse to the
defendant has been taken after the defendant exercised a legal right. (Goodwin,
at p. 373.) The presumption applies,
however, only where a reasonable likelihood of vindictiveness exists, since
applying the presumption may thwart a legitimate response to criminal conduct. (Id.
at pp. 373, 384.) “[A] mere opportunity for vindictiveness is insufficient to
justify the imposition of a prophylactic rule.”
(Ibid.) Before trial commences, i.e., before jeopardy
attaches, no presumption of vindictiveness applies, even where there is some
appearance of vindictiveness. (
important factor in determining vindictiveness].) Before trial, the defendant must show with
objective evidence that the state’s charging decision was based upon improper
considerations. (Bracey, at p. 1549.)
“If the
defendant demonstrates facts sufficient to give rise to a presumption of
vindictiveness, the burden shifts to the People to rebut the presumption.” (People
v. Johnson (1991) 233 Cal.App.3d 425, 447.)
The prosecution must then demonstrate an objective change of
circumstance justifying the charging or sentencing decision and must show the
new information could not have reasonably been discovered when the prosecutor
filed the original charges. (
In
Cal.3d 360 (Twiggs), after the jury
was unable to reach a verdict, the prosecution offered the defendant a plea
agreement. (Id. at p. 364.) After the
defendant rejected the offer and exercised his right to a jury trial, the
prosecutor was permitted to amend the information to charge five additional
prior felony convictions as enhancements. (Id.
at pp. 364–365.) The Twiggs court
reasoned that “[t]he same considerations that led the high court to condemn
such prosecutorial conduct in the context of a postconviction appeal are
applicable when the defendant asserts his right to a retrial after a
mistrial. As a prosecutor would have a
considerable stake in discouraging appeals requiring trials de novo, so too
would the prosecution in a case such as this have a great interest in
discouraging defendant’s assertion of a retrial, particularly since the
prosecution was unable to obtain a conviction in the first trial.” (Id.
at p. 369.) The court stated that
“[w]here the defendant shows that the prosecution has increased the charges in
apparent response to the defendant’s exercise of a procedural right, the
defendant has made an initial showing of an appearance of vindictiveness.” (Id.
at p. 371.)
distinguished Bordenkircher,
plea negotiations that, if he did not plead guilty and accept the five-year
offer, the prosecution would seek an indictment under the state’s recidivist
statute and thus expose the defendant to a maximum sentence of life
imprisonment. (Bordenkircher, at pp.
358–359.) In Bordenkircher, the United States Supreme Court held that the
prosecutor’s conduct did not violate the defendant’s right to due process by
openly presenting him with the disagreeable choice of accepting the plea or
facing charges on which he was clearly subject to prosecution. (Id.
at p. 365.) Twiggs stated that Bordenkircher
“specifically did not decide the issue of vindictiveness presented in a
case such as this, where the record suggests that the more serious charges were
not part of the ‘give-and-take’ of plea negotiations. Rather, in this case, the circumstances
strongly suggest that the prosecutor unilaterally imposed a penalty in response
to the defendant’s insistence on facing a jury retrial.” (Twiggs,
court found a presumption of vindictiveness, and found its reasoning consistent
with the general rule of the Ninth Circuit Court of Appeals that “[w]here the
defendant shows that the prosecution has increased the charges in apparent
response to the defendant’s exercise of a procedural right, the defendant has
made an initial showing of an appearance of vindictiveness. [Citation.]”
(Ibid.) Twiggs applied
this rule to the case before it because “[t]he prosecution showed no interest
in charging the additional prior convictions until the defendant insisted on a
retrial, circumstances that plainly gave rise to a presumption of
vindictiveness.” (Id. at p. 372.)
Here,
unlike Twiggs, supra, 34 Cal.3d 360,
information to add five additional prior felony convictions as enhancements
after the defendant rejected a plea deal and exercised his right to a jury
trial, defendant’s five strike priors were charged in the information. Thus, defendant cannot establish a presumption
of vindictiveness because the matter was always a Three Strikes case. The prosecution’s expressed policy of
charging cases like defendant’s as a two-strikes case does not raise a
presumption of vindictiveness because that a presumption arises only where
there is objective evidence the state’s charging decision is based upon
improper motives. (People v. Bracey, supra,
case was always a Three Strikes case and the prosecution’s decision to proceed
as a Three Strikes case was not based upon defendant’s exercise of his right to
a jury trial, but due to the “heinous” nature of the offense out of which the
strikes arose. Thus, defendant’s case
did not change in character such that he had no notice of the potential outcome
of proceeding to trial as opposed to accepting the prosecution’s plea
offer. Rather, defendant chose to
proceed to trial on a potential Three Strikes matter because he did not want to
accept the plea deal.
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON,
J.
We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.
name="_ftn1" title="">[1]
All statutory references herein are to the Penal Code unless otherwise
indicated.
name="_ftn2" title="">[2]
Defendant’s five strike priors, as more fully discussed infra, consisted of one
count of rape by force or fear (§ 261, subd. (a)(2)), two counts of oral
copulation (§ 288a, subd. (c)), and two counts of penetration with a
foreign object (§ 289, subd. (a)), arising out of a single case with a
conviction date of August 6, 1996. The
information further alleges that one of defendant’s section 288a subdivision
(c) convictions resulted in a prior prison term within the meaning of section
667.5, subdivision (b).
