Opinion
Review Dismissed and Cause is Remanded September 2, 1998.
Previously published at 60 Cal.App.4th 275 Dallas Sacher by Appointment of the Sixth District Appellate Program, Santa Clara, for Defendant/Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Ronald E. Niver, Supervising Deputy Atty. General ,Clifford K. Thompson, Deputy Atty. General, for Plaintiff/ Respondent.
MIHARA, Associate Justice.
Defendant pled guilty to two counts of selling methamphetamine (Health & Saf.Code, § 11379, subd. (a)), and the court found true allegations that defendant had suffered three prior felony convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Defendant was committed to state prison to serve two consecutive 25-year-to-life terms. On appeal, he claims that (1) two of the three prior convictions only constituted a single conviction because they were not "brought and tried separately," (2) the trial court erred in overruling his objections to the admission of a preliminary hearing transcript to prove the third prior conviction allegation, (3) the trial court was unaware of, and therefore failed to exercise, its discretion to impose concurrent terms and (4) the sentence imposed is cruel or unusual. We affirm the judgment.
FACTS
On January 24, 1996, defendant sold a sixteenth of an ounce of methamphetamine to an undercover police officer. Two days later, defendant sold a quarter of an ounce of methamphetamine to the same undercover police officer. Defendant was charged by indictment with three counts of selling methamphetamine (Health & Saf.Code, § 11379, subd. (a)), and it was further alleged that he had suffered three prior felony convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Defendant pled guilty to two of the three counts and agreed to a court trial of the prior conviction allegations. The prosecutor dismissed the remaining count.
At the court trial on the prior conviction allegations, the prosecutor introduced documentary evidence to prove the three prior conviction allegations. Two of the allegations were based on robbery convictions which had been tried together. These allegations were proven up by a certified abstract of judgment.
The court found all of the allegations true. Defendant's trial counsel asked the court to dismiss two of the prior conviction allegations "on the grounds that the strike priors violate Mr. Lopez's rights to equal protection of the laws and due process ... [b]ecause someone who commits a much more heinous crime such as murder can only get twenty-five years to life." He also asked the court to exercise its discretion under Penal Code section 1385 and strike two of the prior conviction allegations. In addition, defendant's trial counsel asked the court to consider striking two of the allegations "under Dillon." The court denied these requests. "I find that it would be inappropriate to strike the priors as requested in Mr. Lopez's case, taking into consideration the totality of what appears to be a life of crime. [p] I believe strongly that Mr. Lopez is the person that this legislation, this type of law, the philosophy behind it was brought about." "I find that based upon the totality of the circumstances it would be an abuse of discretion to have stricken any of the priors in this case...."
Defendant's trial counsel asked the court "in the interest of justice" to impose concurrent terms theorizing that "I think the court may have discretion." The court concluded that it had no discretion under the facts of this case. "[T]he provisions under 667 sub six suggest that it shall be consecutive. That appears to be mandatory language. I don't believe I have any discretion there. Romero doesn't vest me with that kind of discretion. The code says if there are separate offenses on separate dates, it shall be consecutive under [section] 667[, subdivision] (c)(6). Do either of you dispute that?" Defendant's trial counsel conceded that "[t]hat's what the language says but I wanted to make the request." The court imposed consecutive 25-year-to-life terms for the two counts. Defendant filed a timely notice of appeal.
DISCUSSION
A. "BROUGHT AND TRIED SEPARATELY"
Defendant claims that his two prior robbery convictions "are usable solely as a single conviction" because they were not "brought and tried separately." This issue was recently resolved by the California Supreme Court in People v. Fuhrman (1997) 16 Cal.4th 930, 67 Cal.Rptr.2d 1, 941 P.2d 1189. Multiple prior convictions do qualify as multiple prior felony convictions under Penal Code sections 667, subdivisions (b) to (i) and 1170.12 even if they were not "brought and tried separately." (People v. Fuhrman, supra, 16 Cal.4th at p. 939, 67 Cal.Rptr.2d 1, 941 P.2d 1189.) As we are bound by this ruling (Auto Equity Sales, Inc. v. Superior B. PRELIMINARY HEARING TRANSCRIPT
The trial court found true three prior conviction allegations. Defendant challenges the court's finding on one of the three prior conviction allegations on the ground that the court erred in admitting the preliminary hearing transcript which proved that one allegation. "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Because the trial court was mandated to impose the 50 years to life sentence as a result of its findings on the other two prior conviction allegations, and the court expressly refused to strike any of the prior conviction allegations, any error in the admission of the preliminary hearing transcript or the finding on this allegation manifestly could not have resulted in "a miscarriage of justice." Hence, we need not further address this claim since it could not support a reversal of the judgment regardless of its validity.
C. CONSECUTIVE TERMS
Defendant claims that the trial court was "unaware" of its discretion to impose concurrent terms. He concedes that consecutive terms are mandatory where the offenses were not committed "on the same occasion" and did not arise "from the same set of operative facts," and he does not contend that these offenses were committed "on the same occasion." Defendant does maintain that his offenses arose "from the same set of operative facts." We conclude that the trial court did not err in implicitly finding that defendant's offenses did not arise "from the same set of operative facts."
In People v. Hendrix (1997) 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64, the California Supreme Court held that, when multiple current offenses were committed on the same occasion or arose from the same set of operative facts, trial courts have the discretion to impose either consecutive or concurrent terms under Penal Code sections 667, subdivisions (b) to (i) and 1170.12 even where the defendant has two prior serious felony convictions. (Pen.Code, §§ 667, subd. (c); 1170.12, subd. (a).)
The first question we must resolve is the meaning of "the same set of operative facts." The only judicial uses of this phrase that we have located are in cases involving the application of the doctrines of collateral estoppel or election of remedies. The phrase "the same set of operative facts" is used in these cases to refer to those facts which prove a criminal or civil defendant's liability for a particular wrongful act. (People v. Nunez (1986) 183 Cal.App.3d 214, 221, 228 Cal.Rptr. 64; General Ins. Co. v. Mammoth Vista Owners' Assn. (1985) 174 Cal.App.3d 810, 828, 220 Cal.Rptr. 291; People v. Superior Court (Jackson) (1975) 44 Cal.App.3d 494, 502, 118 Cal.Rptr. 702.) "Where the language of a statute uses terms that have been judicially construed, the presumption is almost irresistible that the terms have been used in the precise and technical sense which had been placed upon them by the courts. This principle applies to legislation adopted through the initiative process." (People v. Weidert (1985) 39 Cal.3d 836, 845-846, 218 Cal.Rptr. 57, 705 P.2d 380, internal citations and quotation marks omitted.) Although the phrase in question does not appear in any other statutes we have been able to locate, courts have repeatedly used the phrase to refer to the specific facts which prove the underlying act upon which a defendant has been held liable. We believe that the enactors of Penal Code sections 667, subdivisions (b) to (i) and 1170.12 used this phrase with this meaning in mind.
The next step is to apply our interpretation of this phrase to the facts of defendant's offenses. Defendant's liability for the January 24 offense was based on a "set of operative facts" which was entirely separate Relying on his own statement to the probation officer that he customarily purchased "an 'eightball' at a time," used some and sold the rest, defendant claims that, "[g]iven the close proximity in time of the two sales, it is relatively certain that the drugs came from a single stash." This claim is inconsistent with the facts. While the January 24 sale could have come from a "stash" which constituted the remainder of an "eightball," the January 26 offense involved the sale of two "eightballs." Clearly, this second sale could not have come from the same "stash." Moreover, it is immaterial whether the two sales came from the same "stash." Defendant was not charged with possession. He was charged with selling methamphetamine. The two offenses arose out of entirely separate sales of methamphetamine. The trial court did not err in concluding that Penal Code sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6) mandated the imposition of consecutive terms in this case since defendant's offenses did not occur on the same occasion or arise from the "same set of operative facts."
D. CRUEL OR UNUSUAL PUNISHMENT
Defendant challenges his sentence as cruel or unusual punishment. "A punishment is excessive under the Eighth Amendment ... if it is grossly out of proportion to the severity of the crime. A punishment may violate article I, section 17 of the California Constitution 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." (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1236, 277 Cal.Rptr. 382, citations and quotation marks omitted.) The relevant criteria for evaluating whether a particular punishment violates the California Constitution are set forth in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 and In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921. "[A] statutory punishment may violate the constitutional prohibition not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed." (People v. Dillon, supra, 34 Cal.3d at p. 478, 194 Cal.Rptr. 390, 668 P.2d 697.) Lynch established that "when a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit...." (In re Lynch, supra, 8 Cal.3d at p. 419, 105 Cal.Rptr. 217, 503 P.2d 921.) In this case, the maximum term imposed on defendant was life imprisonment. Thus, for purposes of comparison, we must consider whether a life sentence was unconstitutionally disproportionate on the facts of this case. In Lynch, the California Supreme Court offered three "techniques" for evaluating whether a particular punishment is excessive. The first of these techniques involves an examination of "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (In re Lynch, supra, 8 Cal.3d at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921.) The second technique requires a comparison of the punishment prescribed here with that prescribed for more serious offenses. (Id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921.) The reasoning behind this technique is that because "the Legislature may be depended upon to act with due and deliberate regard for constitutional restraints in prescribing the vast majority of punishments set forth in our statutes" the existence of "more serious crimes punished less severely than the offense in question" may make the challenged penalty appear suspect. (Id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921.) The third technique involves a comparison of the penalty prescribed in California with the penalty prescribed in other jurisdictions. Again, the purpose of this inquiry is to see if the challenged penalty is disparate in comparison to "the punishments decreed for the offense in a significant number of those [other] jurisdictions...." (Id. at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921.)
He challenges his sentence under both the California and U.S. Constitutions. Since the California Constitution's prohibition against cruel or unusual punishment is arguably broader than the U.S. Constitution's prohibition against cruel and unusual punishment, we analyze his contention under the California standard only. A punishment which satisfies this standard necessarily also satisfies the federal standard. (Cf. People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880.)
1. THE NATURE OF THE OFFENSES AND THE OFFENDER
Our inquiry into the nature of the offenses necessarily encompasses "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (People v. Dillon, supra, 34 Cal.3d at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.) We must look at the offenses both in the abstract and as they were actually committed. (Ibid.)
Selling methamphetamine is a non-violent offense which is not classified as a "serious" crime. The ordinary punishment for this offense is a state prison term of two, three or four years. (Health & Saf.Code, § 11379, subd. (a).) The facts of the offenses demonstrated that defendant was an established methamphetamine dealer, and defendant admitted as much to the probation officer. The quantities sold were not, as defendant asserts, "relatively small quantities of methamphetamine." Defendant told the probation officer that he, an admitted dealer, generally only bought an "eightball" at a time. Yet defendant sold twice that amount to the officer on the second occasion. Defendant's offense in fact involved the sale of a substantial quantity of methamphetamine.
Thus, in the absence of his prior convictions, the maximum prison sentence to which defendant could have been sentenced for his substantive offenses would have been five years and four months.
Defendant claims that his offenses were mitigated by the alleged fact that "the sales were made for the purpose of feeding appellant's own addiction." The only evidence supporting this allegation is defendant's own statement. In fact, until he faced a life sentence, defendant had never indicated that he was addicted to drugs and had instead expressly denied using drugs. The trial court found that there were no mitigating "crime related" or "defendant related" factors. On this record, we agree. It is far from established that defendant was an addict who dealt methamphetamine solely to feed his own addiction. We decline to consider this a mitigating factor.
Consideration of the nature of the offender focuses on "the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (People v. Dillon, supra, 34 Cal.3d at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697) "The purpose of a recidivist statute ... is not to simplify the task of prosecutors, judges, or juries. Its primary goals 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. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has Defendant was only 27 years old when he committed the current offenses, but he had already amassed a substantial criminal record and demonstrated that he is immune to punishment and intent upon a life of repetitive criminal behavior. In 1987, at the age of 18, defendant committed misdemeanor vehicle tampering (Veh.Code, § 10852). He was granted probation with a brief county jail term. After turning 19, defendant committed a felony assault with a knife. He was again treated leniently. In August 1988, he was granted probation for the assault conviction conditioned on service of six months in jail. Defendant did not discontinue his criminal behavior in response to these convictions. In February 1989, while still on probation for the assault conviction, defendant committed two counts of first degree robbery. Needless to say, his probation was revoked. These robberies were "meticulously" planned by defendant. In March 1990, defendant was committed to state prison for seven years and four months for the two robberies. He was first paroled in July 1993. His parole was revoked in October 1994, and he was returned to state prison. He was again released on parole in December 1994. He was arrested in January 1995, and his parole was again revoked. Both of these parole revocations arose out of weapons-related parole violations. Defendant was returned to state prison. He was released on parole in July 1995. The current offenses occurred six months later. Defendant's parole officer described him as "a dangerous individual."
A punishment violates constitutional principles if it is so grossly disproportionate to the conduct for which it is imposed that it "shocks the conscience and offends fundamental notions of human dignity." (People v. Ordonez, supra, 226 Cal.App.3d at p. 1236, 277 Cal.Rptr. 382.) Defendant's record of recidivism leaves us with no doubt that defendant is the type of individual who will repeatedly reoffend no matter what sanction is attached to his conduct. His response to probation was to elevate the seriousness of his criminal misbehavior. Released on parole, he repeatedly associated himself with weapons. His repeated returns to prison for parole violations did not dissuade him from committing the current offenses just six months after his most recent release on parole. The punishment imposed on defendant by the trial court will ensure that defendant never again poses a danger to society outside of prison. For nearly a decade, defendant has posed a significant danger to others. Previous attempts to stem the tide of his criminal activity have failed. He continues to endanger others by his criminal activity. We are convinced that the life term imposed on defendant was not unconstitutionally disproportionate.
2. PUNISHMENT FOR MORE SERIOUS OFFENSES
The punishment imposed on defendant is based in great part on the fact that he previously committed serious felonies. He would have received this same sentence if he had committed any felony offense. In this context, it makes little sense to compare the punishment to those set by the Legislature for more serious offenses. The Legislature has decided that those offenders who have twice committed serious felonies shall receive this term of imprisonment for their commission of any new felony offense. These offenders are not similarly situated with non-recidivists and therefore their punishment cannot be compared to that imposed on those who do not have a record of multiple prior serious felonies. Because the punishments specified in Penal Code sections 667, subdivisions (b) to (i) and 1170.12 constitute the punishment for a particular offense only if the offender has suffered a prior serious felony conviction, the punishments specified for "more serious offenses" to which we must compare the punishment imposed for defendant's offenses would necessarily also be offenses committed by recidivists which would fall under the penalty provisions of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Defendant's sentence is not disproportionate to that he or any other recidivist with a record like his would have received if he or she committed new felony offenses. It is precisely the same. This does not offend the California Constitution or the U.S. Constitution. 3. PUNISHMENT FOR OFFENSES IN OTHER JURISDICTIONS
Defendant asserts that "[s]ome states' recidivist statutes, which appear on their face to be as draconian as California's, in actual practice, are not enforced as rigidly as is California's." The fact that defendant could have received a life sentence for his offense in several other jurisdictions tends to discount rather than support any suspicions about the propriety of the sentence imposed herein. Defendant's sentence does not appear unconstitutionally disproportionate when viewed in light of the punishment that could have been imposed in other jurisdictions.
CONCLUSION
The judgment is affirmed.
COTTLE, P.J., and BAMATTRE-MANOUKIAN, J., concur.