P. v. Ramos













Filed 4/4/13 P. v. Ramos CA4/1

>

>

>

>

>

>

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

THE PEOPLE, Plaintiff and Respondent, v. JESUS RAMOS, Defendant and Appellant.

D062367 (Super. Ct. No. SCD228658)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Laura H. Parsky, Judge. Affirmed.



A jury
found Jesus Ramos guilty of possession of
child pornography, and the trial court found true allegations Ramos had two
prior convictions of committing a lewd act on a child under the age of 14. For the current conviction, the court imposed
a prison sentence of 25 years to life under the "Three Strikes"
law. Ramos contends the court abused its
discretion in refusing to dismiss the allegations concerning at least one of
his prior lewd act convictions, and the sentence violates constitutional
prohibitions against double jeopardy and cruel
and/or unusual punishment. We reject
these contentions and affirm the judgment.

I.

FACTUAL
BACKGROUND

While Ramos
was on parole and subject to a waiver of his href="http://www.fearnotlaw.com/">Fourth Amendment rights, his parole
officer searched his car and found two video game devices with Internet
capabilities. Ramos told the parole officer
he "might find multiple pornographic images" on the devices,
"some involving kids." The
memory stick of one of the devices contained four images of young girls
performing fellatio on adult men and one image of a young girl licking the
breasts and touching the vulva of another young girl. The memory stick also indicated the device
had been used to access Web sites featuring child pornography.

II.

PROCEDURAL
BACKGROUND

The People
charged Ramos with felony possession of
child pornography. (Pen. Code,
§ 311.11, subd. (a).) They
alleged Ramos had two prior convictions of committing a lewd act on a child
under the age of 14 years (id.,
§ 288, subd. (a)), which constituted strikes under the Three Strikes
law (id., §§ 667,
subds. (b)-(i), 1170.12); and a prior conviction of a drug offense (Health
& Saf. Code, § 11377, subd. (a)), for which Ramos served a prison
term (Pen. Code, § 667.5, subd. (b)).
The People also alleged these prior convictions, as well as a prior
conviction of possession of a firearm by a felon (id., former § 12021, subd. (a)(1)), made Ramos ineligible
for probation for the current offense (id.,
§ 1203, subd. (e)(4)).

A jury
found Ramos guilty of possession of child pornography. In a bifurcated bench trial, the court found
true the allegations concerning Ramos's prior convictions.

After the
trial but before sentencing, Ramos moved the trial court to dismiss the
allegations concerning his prior strike convictions. Ramos argued the court should dismiss the
allegations because he was cooperative with law enforcement in connection with
the current offense; he admitted he needed help; his prior strike convictions
were 12 years old; his prior crimes were not violent; he is not a danger to
society; and he is remorseful. Attached
to the motion were letters from 10 family members urging the court to exercise
leniency in sentencing Ramos and to give him a chance to rehabilitate.

The People
opposed Ramos's motion. They argued the
prior strike conviction allegations should not be dismissed because the current
conviction indicates Ramos's continuing tendency to exploit children for his
own sexual gratification; the prior convictions were not remote; Ramos had been
convicted of two felonies (possession of methamphetamine and possession of a
firearm by a felon) and sent to prison in the time between the prior strike
convictions and the current conviction; and the prior strike convictions were
"egregious and disturbing."

At the
sentencing hearing, the court stated it had read and considered the probation
report and the parties' submissions regarding sentencing. After hearing counsel's arguments and a brief
plea from Ramos "to have a chance to rehabilitate," the court stated
as follows:

"[T]he court must consider whether
dismissal is in furtherance of justice considering both the defendant's
constitutional rights and the interest of society represented by the People,
and the court is to consider in particular Mr. Ramos's background, the
nature of the present offenses and other individualized considerations to
determine whether Mr. Ramos falls within the spirit of the Three Strikes
law.

"And the court has taken into
consideration to a great deal the defense request to allow Mr. Ramos the
opportunity for rehabilitation. However,
Mr. Ramos has had that opportunity.
And if this were a case where there [were] the initial two offenses
which created the strike offenses, the child molestation and then this were the
next offense and there . . . was no criminal conduct in
between, there was no opportunity being on probation in between to get
treatment, to get the rehabilitative services that he's now requesting, it
would be a very different case.

"But here what the court has is a
significant period of time since his first convictions for the strikes in 2000
in which Mr. Ramos had that opportunity.
And although Mr. Ramos stated to his parole officer that the reason
he was using the photographs of the young children was so that he wouldn't
touch young children, I don't think it should be lost that this is still a
victim crime. There were young children
that were used and were abused in order to create those images. And without a demand for those images, young
children would not continue to be abused in that way. So there are victims involved. It may not be victims that Mr. Ramos
touched, but they are victims that other people touched and there was a demand,
including by Mr. Ramos, for those photographs.

"So the court does not believe in
this situation, where Mr. Ramos had two other criminal convictions between
the time of his original strike convictions for the child molestation and the
present conviction, that his case falls outside the spirit of the Three Strikes
law. There is a clear pattern of
recidivism and then an ability to take advantage of the rehabilitative
opportunities that have been provided."

The court therefore refused to dismiss the allegations
concerning Ramos's prior strike convictions and imposed a sentence of 25 years
to life in prison for the current conviction pursuant to the Three Strikes
law. (Pen. Code, §§ 667,
subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) The court also imposed a consecutive one-year
prison term for Ramos's prior conviction of methamphetamine possession for
which a prison term had been imposed. (>Id.,
§ 667.5, subd. (b).)

DISCUSSION

Ramos
argues the trial court abused its discretion by refusing to dismiss the
allegations concerning at least one of his prior convictions of committing a
lewd act on a minor. He also argues his
prison sentence constitutes unconstitutionally cruel and/or unusual punishment
and violates the double jeopardy clause
of the federal Constitution. As we shall
explain, these arguments have no merit.

A. The
Court Did Not Abuse Its Discretion by Refusing to Dismiss the Allegations
Concerning Ramos's Prior Strike Convictions

Ramos
argues that "[u]nder the relevant factors, the trial court abused its
discretion in refusing to strike one or both of [his] strike priors." We disagree.

A trial
court may dismiss prior felony conviction allegations in cases prosecuted under
the Three Strikes law when dismissal is "in furtherance of
justice." (Pen. Code, § 1385,
subd. (a); see People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 529-530.) "[T]he law creates a strong presumption
that any sentence that conforms to [its] sentencing norms is both rational and
proper." (People v. Carmony (2004) 33 Cal.4th 367, 378.) In deciding whether to dismiss prior
conviction allegations, the court "must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the 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 (1998) 17 Cal.4th 148, 161.)
We review a trial court's refusal to dismiss prior conviction
allegations for abuse of discretion. (>People v. Carmony, supra, at
p. 375.) "[A] trial court does
not abuse its discretion unless its decision is so irrational or arbitrary that
no reasonable person could agree with it."
(Id. at p. 377.)

There was
no abuse of discretion here. The trial
court's statements at the sentencing hearing indicate awareness that it had
discretion to dismiss the allegations of the prior strike convictions and the
factors it was to consider in exercising that discretion. Various mitigating and aggravating factors
were presented in the probation report (which the trial court read and signed),
the parties' sentencing memoranda, and counsel's arguments and Ramos's
statement at the sentencing hearing. These sources presented no " 'extraordinary
[circumstances] by which [Ramos] can be deemed to fall outside the spirit of
the very scheme within which he squarely [fell] once he committ[ed] a strike as
part of a long and continuous criminal record.' " (>People v. Carmony, supra, 33 Cal.4th at p. 378.)
To the contrary, Ramos's refusal to address his aberrant sexual behavior
and his repeated commission of crimes involving exploitation of children, on
which the trial court expressly relied, supported its conclusion that Ramos
fell within the spirit of the Three Strikes law. (See ibid.
[that defendant had "done little to address his substance abuse
problems," which contributed to prior convictions, supported trial court's
refusal to dismiss prior strike conviction allegations]; People v. Strong (2001) 87 Cal.App.4th 328, 344 [multiple
convictions for same type of offense brought defendant within spirit of Three
Strikes law].) Where, as here, the
record indicates the trial court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the Three Strikes law, we
must affirm its ruling. (>People v. Carmony, supra, at p. 378.)

B. Ramos's
Prison Sentence Does Not Violate Constitutional Prohibitions Against Cruel
and/or Unusual Punishment or Double Jeopardy

Ramos also
argues the prison sentence of 25 years to life "is so grossly
disproportionate to the current offense of possession of child pornography,
which involved no violence or physical harm," that it "violates the
state and federal prohibitions against cruel and/or unusual
punishment." He also argues
"[r]eliance on the prior offenses as the sole basis for an increase in
punishment offends the Double Jeopardy Clause of the United States
Constitution." Again, we disagree.

1. >Forfeiture

As an
initial matter, the People correctly note that Ramos did not preserve his
constitutional challenges to the sentence for appellate review. A claim that a prison sentence constitutes
cruel and/or unusual punishment is forfeited on appeal if the claim was not
raised in the trial court. (>People v. Russell (2010) 187 Cal.App.4th
981, 993.) Also, "failure to
interpose a plea of double jeopardy in the trial court waives the defense and
it cannot be raised for the first time on appeal." (In re
Henry C. (1984) 161 Cal.App.3d 646, 648-649.) Nevertheless, to forestall a claim of
ineffective assistance of counsel based on forfeiture, we consider the merits
of Ramos's constitutional challenges.
(See, e.g., People v. Daniels (2012)
208 Cal.App.4th 29, 31; Russell, at
p. 993.)

2. Cruel and/or Unusual Punishment

The federal
Constitution prohibits imposition of punishment that is "cruel and
unusual." (U.S. Const., 8th Amend.;
see Robinson v. California (1962) 370
U.S. 660, 666-667 [holding 8th Amend. applies to states through 14th
Amend.].) The state Constitution
provides: "Cruel or unusual
punishment may not be inflicted or excessive fines imposed." (Cal. Const., art. I, § 17.) "Whereas the federal Constitution
prohibits cruel 'and' unusual punishment, California affords greater protection
to criminal defendants by prohibiting cruel 'or' unusual punishment." (People
v. Haller (2009) 174 Cal.App.4th 1080, 1092 (Haller).) Both Constitutions
"preclude punishment that is disproportionate to a defendant's individual
culpability." (People v. Webb (1993) 6 Cal.4th 494, 536.)

Ramos's
sentence does not violate the federal Constitution's ban on cruel and unusual
punishment. "[T]he Eighth Amendment
contains a 'narrow proportionality principle,' that 'does not require strict
proportionality between crime and sentence' but rather 'forbids only extreme
sentences that are "grossly disproportionate" to the crime.' " (Graham
v. Florida (2010) 560 U.S. ___, ___ [176 L.Ed.2d 825, 836, 130 S.Ct. 2011,
2021].) "Recidivism has long been
recognized as a legitimate basis for increased punishment." (Ewing
v. California (2003) 538 U.S. 11, 25 (lead opn. of O'Connor, J.).) "Outside the context of capital
punishment, successful challenges to the proportionality of particular
sentences have been exceedingly rare."
(Rummel v. Estelle (1980) 445
U.S. 263, 272; accord, Ewing, at
p. 21 (lead opn. of O'Connor, J.).)
Applying these principles, the high court rejected federal
constitutional challenges to prison terms of 25 years to life imposed under the
Three Strikes law on defendants whose latest convictions were for theft
offenses. (Lockyer v. Andrade (2003) 538 U.S. 63, 68, 77 [petty theft with
prior convictions of petty theft and burglary]; Ewing, at pp. 29-31 (lead opn. of O'Connor, J.) [grand theft
with prior convictions of robbery and burglary].) If a prison sentence of 25 years to life is
not grossly disproportionate to the property crimes considered in >Lockyer and Ewing, it is not grossly disproportionate to the sex crimes at
issue in this case, which involved abuse and exploitation of vulnerable young
children. (Cf. People v. Diaz (1996) 41 Cal.App.4th 1424, 1428, 1431 [rejecting
cruel and unusual punishment challenge to aggregate prison sentence of 30 years
to life imposed for current conviction of child molestation when defendant had
two prior child molestation convictions].)

For the
same reasons, Ramos's sentence does not violate the state Constitution's ban on
cruel or unusual punishment. A prison
sentence violates that ban if "it is so disproportionate to the crime for
which it is inflicted that is shocks the conscience and offends fundamental
notions of human dignity." (>In re Lynch (1972) 8 Cal.3d 410, 424;
see also People v. Dillon (1983) 34
Cal.3d 441, 450 ["a punishment is impermissible if it is grossly
disproportionate to the offense as defined or as committed, and/or to the
individual culpability of the offender"].)
"As under the federal standard, a defendant's history of
recidivism . . . justifies harsh punishment" (>People v. Meeks (2004) 123 Cal.App.4th
695, 709 (Meeks)); and successful
challenges to proportionality " 'have occurred with exquisite rarity in the case law' " (>People v. Em (2009) 171 Cal.App.4th 964,
972; see also People v. Ruiz (1996) 44
Cal.App.4th 1653, 1662 ["Habitual offender statutes have long withstood
the constitutional challenge of cruel or unusual punishment."]). Applying these principles, courts have upheld
prison sentences of 25 years to life imposed under the Three Strikes law for
current nonviolent offenses in cases involving comparable, and perhaps less
serious, criminal culpability than that involved here. (See, e.g., People v. Nichols (2009) 176 Cal.App.4th 428, 430, 431-432, 437
[failure to register as sex offender with prior convictions of robbery and
forcible oral copulation]; People v.
Romero (2002) 99 Cal.App.4th 1418, 1423, 1424, 1432 [petty theft with prior
convictions of burglary and lewd conduct with child under age 14].) Under these circumstances, Ramos has not
shown his prison sentence "offends fundamental notions of human
dignity" or "shocks the conscience." (People
v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.)href="#_ftn1" name="_ftnref1" title="">[1]

2. >Double Jeopardy

The double
jeopardy clause of the federal Constitution provides that no person shall
"be subject for the same offence to be twice put in jeopardy of life or
limb." (U.S. Const., 5th Amend.;
see Benton v. Maryland (1969) 395
U.S. 784, 794 [holding double jeopardy clause applicable to states through 14th
Amend.].) The clause prohibits, among
other things, the imposition of more than one punishment for the same
offense. (E.g., Witte v. United States (1995) 515 U.S. 389, 395-396.) The United States Supreme Court repeatedly
has held that statutes punishing repeat offenders more harshly than first-time
offenders do not violate the double jeopardy clause. (See, e.g., Gryger v. Burke (1948) 334 U.S. 728, 732 ["The sentence as a
fourth offender or habitual criminal is not to be viewed as either a new
jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest
crime, which is considered to be an aggravated offense because a repetitive
one."]; Graham v. West Virginia (1912)
224 U.S. 616, 623 ["The propriety of inflicting severer punishment upon
old offenders has long been recognized in this country and in England. They are not punished the second time for the
earlier offense, but the repetition of criminal conduct aggravates their guilt
and justifies heavier penalties when they are again convicted."]; >Moore v. Missouri (1895) 159 U.S. 673,
678 ["the state may undoubtedly provide that persons who have been before
convicted of crime may suffer severer punishment for subsequent offenses than
for a first offense"].) Indeed, in
a more recent case challenging a sentence under the Three Strikes law, the high
court quoted Gryger and held: "An enhanced sentence imposed on a
persistent offender thus 'is not to be viewed as either a new jeopardy or
additional penalty for the earlier crimes' but as 'a stiffened penalty for the
latest crime, which is considered to be an aggravated offense because a
repetitive one.' " (Monge
v. California (1998) 524 U.S. 721, 728; see also McDonald v. Massachusetts (1901) 180 U.S. 311, 313 [statute
prescribing 25-year prison term for third felony conviction did not "put
the accused twice in jeopardy for the same offense"].)

Based on these controlling
decisions, we agree with our colleagues in the Fifth District that the Three
Strikes law "do[es] not impose a second punishment for the first offense
in violation of the double jeopardy clause of the United States
Constitution." (>People v. White Eagle (1996) 48
Cal.App.4th 1511, 1520; accord, People v.
Eribarne (2004) 124 Cal.App.4th 1463, 1469.) To the extent dictum in case law cited by Ramos
suggests otherwise (see People v. Carmony
(2005) 127 Cal.App.4th 1066, 1080 ["double jeopardy clause prohibits
successive punishment for the same offense"; "policy of the clause
therefore circumscribes the relevance of recidivism"]), we decline to follow
it.

DISPOSITION

The judgment is affirmed.





IRION, J.



WE CONCUR:







BENKE,
Acting P. J.







HALLER,
J.