Opinion
H023023.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. PAUL MAGNAN, Defendant and Appellant.
A jury found defendant Paul Magnan guilty of possession of methamphetamine for sale (Health. & Saf. Code, § 11378 [Count 1]), possession of heroin (Health & Saf. Code, § 11350, subd. (a) [Count 2]), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a) [Counts 3 and 4]), and driving without a license (Veh. Code, § 12500, subd. (a) [Count 5]). In a bifurcated proceeding, the trial court found true allegations that defendant had two prior felony "strike" convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)). After denying defendants request to dismiss his prior strike convictions pursuant to Penal Code section 1385, the trial court sentenced defendant to state prison for a term of 25 years to life. On appeal defendant contends his conviction for possession of methamphetamine for sale must be reversed because he was denied his right to fully cross-examine prosecution witness Mhoon in violation of his confrontation rights under the Sixth Amendment to the United States Constitution and Article I, section 15 of the California Constitution. With regard to witness Mhoon, defendant also claims the trial court erred by failing to give CALJIC instructions on accomplice testimony on its own motion and that the cumulative errors in his trial related to Mhoons testimony require reversal of his conviction. In his final argument, defendant contends he has been subjected to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article I, section 17 of the California Constitution. By an accompanying petition for writ of habeas corpus, Magnan claims his trial counsel provided ineffective assistance.
Counts 1 through 3 originally were charged in case number C9932678. Pursuant to the prosecutors motion, those counts were consolidated with Counts 4 and 5, which originally were charged in case number C9930047.
We shall dispose of the petition for writ of habeas corpus by separate order.
I. Facts
Around midnight on May 5, 1999, San Jose Police Officer John Robb noticed a 1985 Audi with a brake light out and a white light shining from its cracked tail lamp lens. Robb stopped the car and approached its drivers door. When Robb asked the driver, whom he identified as defendant, for his drivers license, defendant said, "I dont have one." Robb then asked defendant to step from the car.
As Robb and defendant spoke on the sidewalk, Robb observed that defendant had fixed, non-reactive pupils, slow speech, and droopy eyelids. Robb, who was qualified to testify as an expert regarding the "recognition of objective symptoms of one who is under the influence of [a] controlled substance," testified that he arrested defendant because he believed defendant was under the influence of an opiate.
Defendant was taken to the police station. There, Robb noticed fresh needle marks on the insides of defendants arms, and defendant told Robb that he had shot heroin about four hours before his arrest. The parties stipulated that a urine sample taken from defendant shortly after his arrest contained opiates and methamphetamine.
About a month after the May 5 incident, at approximately 11:45 p.m. on June 11, 1999, San Jose Police Field Training Officer Jay Forbes and trainee Officer Miguel Gonzalez were on patrol when Forbes noticed an old Chevy pickup truck in the parking lot of a canned food outlet. The officers drove up to the truck with their lights off but put on their spotlights and headlights as they reached it.
Forbes saw defendant standing by the open drivers door, leaning into the truck and talking to Shirley Mhoon, who was in the drivers seat. Gonzalez approached defendant and escorted him to the back of the truck. While talking with defendant, Gonzalez noticed that defendant was in "a relaxed state," his body was "real slow," his voice was "raspy," his eyelids were droopy, and his pupils were constricted. Having qualified as an expert, Gonzalez expressed the opinion that defendant was under the influence of a controlled substance. At trial, it was stipulated that a blood sample taken from defendant at 12:55 a.m. on June 12, 1999 contained opiates.
As Gonzalez spoke with defendant, Forbes talked with Mhoon through the open passenger window. Upon request, Mhoon got out of the truck. Forbes, who qualified as an expert "in the recognition of the substance meth or substances which contain meth," testified that he noticed Mhoon was showing signs of being under the influence of methamphetamine. He said Mhoon appeared to be nervous and she had "skin [that] was warm to the touch," a rapid pulse rate, and dilated pupils. Mhoon admitted she was under the influence. Forbes searched Mhoons purse and found a white powder residue that could have been methamphetamine; he also found a burnt piece of aluminum foil and other items he associated with the use of methamphetamine.
Forbes searched the truck after receiving Mhoons permission to do so. He found a "crumpled up" Camels filters "hard pack box" near the drivers side door just "a little bit" under the side of the drivers seat, about a foot from the front of the seat and near "where the seat is bolted down." The box contained no cigarettes but did contain a plastic baggie with a white "chunk-like substance" that Forbes recognized was methamphetamine. Forbes gave the box and its contents to Gonzalez. The white substance was found to weigh 41.6 grams, and it was stipulated that the substance contained 21.69 grams of methamphetamine.
On cross-examination, Gonzalez testified the Camels cigarette pack that contained methamphetamine had been inside a small brown paper bag on the drivers side floorboard. On redirect examination, Gonzalez said Forbes had called him over to look at the bag. Gonzalez added that the truck was "pretty dirty" and that there were clothes and "garbage and stuff like that inside of it." Forbes testified he could not recall if the cigarette pack was in a brown paper bag.
When Officer Brodie Rivera and his training officer arrived at the lot to provide backup, Rivera searched defendant before putting him in the patrol car. In defendants right front coin pocket, Rivera found "a small balloon" that "was packaged in a way consistent with heroin." At trial, it was stipulated that the substance in the balloon contained .91 grams of heroin. Rivera also had found an unopened pack of Camel cigarettes in defendants shirt pocket. Rivera gave Officer Gonzalez the balloon, the cigarettes and about $ 300 that he had seized from defendant.
Shirley Mhoon testified that, at around 11: 45 p.m. on June 11, 1999, she drove the Chevy pickup that belonged to her ex-boyfriend John Doyle from a liquor store to the parking lot of the canned food outlet. Defendant, who was Mhoons current boyfriend, was in the truck with her. Mhoon was seated in the truck with her pants unfastened because she and defendant had been "making out." Mhoon had been using the truck all day and described its interior as "pretty messed up" with a lot of garbage on the floor, including "brown bags, food bags; all kinds of stuff."
After they had parked in the lot, defendant got out; he was leaning into the drivers door, talking to Mhoon, when the two officers arrived and approached the sides of the truck. One of them, Officer Forbes, talked with Mhoon through the passenger window while the other took defendant to the back of the truck. Forbes looked through Mhoons purse. He found a burnt piece of aluminum foil and asked if Mhoon was under the influence. When she said that she was, Forbes took her to another vehicle and asked for her permission to search the truck. Mhoon consented to the search.
Mhoon testified that, when she spoke with Forbes, she was under the influence of "maybe half a quarter gram" of methamphetamine that she had smoked about an hour before she went to the liquor store. She added that, at the time, she was using a lot of methamphetamine and had a tolerance of "higher than a half a gram."
Shown the baggie of methamphetamine that Forbes found in the truck, Mhoon said she did not recognize it or the open pack of Camel cigarettes in which it was found. She testified that she smoked Misty Ultra Lights, not Camels, and that Doyle did not smoke cigarettes at all. She added that Doyle used methamphetamine but never sold it. Mhoon testified she had known defendant since April 1999 and that he smoked "the kind of Camel cigarettes" sold in the Camel cigarette "package" found in the truck.
Mhoon said she had been with defendant on the morning of June 11 and had met with him again that day after 6:00 p.m. She saw defendant ingest some heroin that evening, but she did not see him in possession of the methamphetamine found in the truck or any other methamphetamine. She did not see whether defendant had any money on him, but she believed he did because she was aware he was returning to Minnesota the next day and had to buy an airplane ticket.
On cross-examination, Mhoon testified she was not charged with a crime based upon the June 11 incident, but she understood that she could still be charged with crimes arising from that incident. She said the prosecutor made no promises to her in exchange for her testimony, but she admitted that she was on probation for possession of methamphetamine. On redirect examination, Mhoon repeated that the district attorneys office had made no promises or threats to secure her testimony. She repeated that she was on probation of possession of methamphetamine and being under the influence of methamphetamine. She added the district attorneys office had not made any promises to her concerning her felony possession of methamphetamine conviction for which she was currently on probation.
San Jose Police Officer Rick Tellifson, who was assigned to the Narcotics Covert Investigation Unit, testified as an expert in the recognition of methamphetamine and heroin, the quantity of each drug that constitutes a usable amount, and whether methamphetamine is possessed for sale. Tellifson provided his opinion that the black tar heroin found in the balloon taken from defendant was a usable quantity and that the methamphetamine found in the cigarette box was a usable quantity that was possessed for sale. He explained that methamphetamine commonly was sold on the street to users as (1) a quarter gram for $ 20; (2) a "teener" or 1.5 grams, for around $ 60 to $ 80; or (3) 3.5 grams, an "eight-ball," for about $ 120 to $ 150. The 21.69 grams of methamphetamine found in the cigarette box was about seven grams or two eight-balls less than a full ounce. If that amount of methamphetamine were sold on the street in quarter gram bags, the total amount would be around $ 1,600 to $ 1,700, which is based upon 86 quarter gram bags sold at $ 20 apiece.
Tellifson testified that a rare, heavy methamphetamine user might consume an eight-ball, 3.5 grams, a day while a typical user would consume a quarter gram or 1.5 grams a day. A typical user who snorted methamphetamine probably would use "half a gram or more in a day." For that user, 21.69 grams would last about 42 or 43 days, although a typical user would buy only what he or she needed for a day or two. Tellifson never had known or heard of a user who had 21.69 grams of methamphetamine in his possession for personal use. Accordingly, Tellifson formed the opinion that the methamphetamine found in the cigarette box was possessed for sale. Because the amount of methamphetamine found was about two eight-balls less than an ounce and defendant had $ 300, consisting of two $ 100 bills and two $ 50 bills, when he was arrested, Tellifson believed defendant already had sold two eight-balls.
Robert Gadd, a criminalist with the Santa Clara County Crime Laboratory, processed the cellophane from the cigarette pack and the baggie containing the methamphetamine but found no usable fingerprints. The fact that the items had been seized 18 months earlier, and the environment in which they were stored, could have caused deterioration of any prints. However, Gadd noted that he had "a very low success rate," about five percent, in detecting fingerprints on plastic bags and similar items.
The parties stipulated that a blood sample taken from Mhoon around 1:00 a.m. on June 12, 1999 tested positive for the presence of methamphetamine.
II. Discussion
A. Alleged Violation of Right to Effective Cross-Examination of Witness Mhoon
During defense counsels cross-examination of witness Shirley Mhoon, the following exchange occurred: "Q. Now, youre on probation for possession of methamphetamine; correct? [P] A. Yes, sir. [P] Q. And I understand that youre trying to get that charge reduced to a misdemeanor; correct? [P] A. I dont know anything about that. [P] Q. You recall talking to one of my investigators? [P] A. That was before I was sentenced, yes. [P] Q. And you understood the possibility that if you successfully complete probation, the district attorney can make a motion to reduce that charge to a misdemeanor?" (Italics added.) At that point, the prosecutor objected that "this is speculative," and the trial court sustained the objection.
On appeal defendant contends he was denied his right to fully cross-examine Mhoon and was thereby deprived of "his right to effective confrontation as protected by the Sixth Amendment." Specifically, he claims the courts sustaining of the objection prevented defense counsel "from exposing to the jury the fact that Ms. Mhoon[s] testimony could have been influenced by her desire to have the district attorney cooperate in reducing her charge."
"[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." [Citations.] However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 946, 959 P.2d 183.)
Despite the Peoples claim that defendant waived his confrontation clause claim because his trial counsel did not object on this ground below, we choose to address the claim on its merits since an objection most likely would have been futile after the trial court already had sustained the prosecutors objection to the question that was obviously intended to impeach Mhoons credibility. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5, 161 Cal. Rptr. 762, 605 P.2d 401.)
Defense counsels question was of marginal relevance given its speculative nature, and "the constitutional right to confront and cross-examine adverse witnesses does not include the right to ask wholly speculative questions ungrounded in factual predicate even when posed in the quest to discredit a witness." (People v. Schilling (1987) 188 Cal. App. 3d 1021, 1033, 233 Cal. Rptr. 744.) Furthermore, since defense counsels question did not address whether witness Mhoon had been promised that her felony conviction would be reduced to a misdemeanor at the end of probation in exchange for favorable testimony for the prosecution in this case or even whether the prosecutor had told her that he could reduce her conviction to a misdemeanor, the question was unlikely to reveal a "factor which could reasonably lead the witness to present less than reliable testimony." (In re Anthony P. (1985) 167 Cal. App. 3d 502, 507, 213 Cal. Rptr. 424, italics added.)
We conclude the courts sustaining of the objection did not constitute a violation of the confrontation clause because "[a] trial courts limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted. [Citations.]" (People v. Quartermain (1997) 16 Cal.4th 600, 623-624, 941 P.2d 788.) In the present case, Mhoon testified that she was on probation for felony possession of methamphetamine, that she understood she still could be charged with crimes arising from the June 11 incident, that the district attorneys office had not made any threats or promises to secure her trial testimony, and the prosecutor had made no promises "whatsoever" concerning her felony possession charge.
In this context, defendants reliance upon Davis v. Alaska (1974) 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, is misplaced. In Davis, notwithstanding state policy protecting the anonymity of juvenile offenders, the court held the defendant was denied his right of confrontation when he was precluded by protective order from cross-examining a key prosecution witness to show that the witness was on probation following an adjudication of juvenile delinquency. (Id. at pp. 317-320.)
The cross-examination allowed in this case was not so limited, and defendant was permitted to impeach Mhoons credibility by showing that she had not been charged with any offense based upon the June 11 incident despite the fact that she admitted being under the influence of methamphetamine at that time and despite the fact that her purse contained a white substance suspected to be methamphetamine. Defendant also was permitted to show that Mhoon was on probation for felony possession of methamphetmine, and the district attorneys redirect-examination allowed the jury to infer that the district attorneys office could make a promise concerning that felony conviction should it so choose, although the prosecution established that no such promise had been made as of the time of Mhoons trial testimony. Under these circumstances, defendant has not shown that further cross-examination would have produced a significantly different impression of Mhoons credibility. Accordingly, we conclude that defendant was not denied his right to effective cross-examination and that the trial courts minimal limitation on cross-examination pertaining to the credibility of a witness did not violate the confrontation clause. (People v. Frye, supra, 18 Cal.4th at p. 946.)
However, assuming there was an unconstitutional limitation on cross-examination in this case, any such error was harmless because, "assuming that the damaging potential of the cross-examination were fully realized," the error was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684, 89 L. Ed. 2d 674, 106 S. Ct. 1431; see also Chapman v. California (1967) 386 U.S. 18, 26, 17 L. Ed. 2d 705, 87 S. Ct. 824.) In so concluding, we consider the "importance of the witness testimony in the prosecutions case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutions case. [Citations.]" (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
While Mhoons testimony regarding defendants preference for Camel cigarettes provided one link between defendant and the methamphetamine found in the truck, Mhoon provided some testimony that was favorable to defendant. For example, she testified that she did not recognize the baggie of methamphetamine or the open pack of Camel cigarettes in which it was found, she did not see defendant in possession of any methamphetamine on the date in question, and she believed he had money on him because he had planned to go to Minnesota the following day and needed to purchase an airplane ticket. We find it significant that, apart from Mhoons testimony, the evidence revealed that defendant was carrying an unopened pack of Camel cigarettes similar to the one in which the methamphetamine was found at the time of his arrest. While defendant argues the only evidence linking him to the methamphetamine was his possession of that unopened Camels cigarette box, the evidence also showed that, when the police arrived, he was seen leaning into the truck through the open drivers door and thus was standing directly above where the methamphetamine was found. By contrast, witness Mhoon was on the drivers side of the truck but there was no evidence presented that she made any movement towards the area where the methamphetamine was found before she left the truck in response to a request by Officer Forbes. The evidence also revealed that the total amount the methamphetamine in the truck could be sold for at least $ 1,600 and thus was an amount of contraband unlikely to have been simply misplaced by a user of the drug. Furthermore, Officer Tellifsons expert opinion testimony provided evidence that the amount of money defendant had when arrested and the amount of methamphetamine found in the truck indicated that defendant possessed the drug for sale. Tellifson explained that, because defendant had $ 300 in large bills when he was arrested and the amount of methamphetamine found in the truck was about two eight-balls less than an ounce, Tellifson believed defendant already had sold two eight-balls for the street price of $ 300. In light of the evidence presented at trial, assuming defendant had been able to establish that Mhoon understood that a prosecutor could make a motion to reduce a felony conviction to a misdemeanor upon the successful completion of probation, any error in limiting cross-examination on that precise point was harmless beyond a reasonable doubt.
B. Sua Sponte Duty to Give Accomplice Instructions
Defendant contends the trial court had a sua sponte duty to instruct the jury, pursuant to CALJIC Nos. 3.11 and 3.18, that testimony of an accomplice must be corroborated and is to be viewed with care and caution because prosecution witness Mhoon was an accomplice in the offenses with which defendant was charged. Defendant claims Mhoon was an accomplice because she "was factually equally liable for prosecution in that the drugs were found near where she was seated in the truck she had used all day, she had paraphernalia for ingesting meth in her purse, she was under the influence of meth at the time, and she had a long record of drug related arrests." He argues trial courts failure to give the standard accomplice instructions "was prejudicial error and deprived [him] of his constitutional rights."
Penal Code section 1111 defines an accomplice as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." When there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices. (People v. Gordon (1973) 10 Cal.3d 460, 469-470, 110 Cal. Rptr. 906, 516 P.2d 298.)
Assuming arguendo the trial court erred by failing to give accomplice instructions in this case, any such error was harmless. "[A] conviction will not be reversed for failure to instruct on these principles if a review of the entire record reveals sufficient evidence of corroboration. [Citation.] Corroboration need only be slight." (People v. Frye, supra, 18 Cal.4th at p. 966.) Here, there was more than ample corroboration, including the fact that defendant had an unopened Camels cigarette box similar to the one in which the methamphetamine was found, he had been leaning into the open drivers door above where the methamphetamine was located, he had $ 300 on his person when arrested, and the expert testimony that the amount of money defendant had and the amount of methamphetamine found in the truck indicated that defendant probably had sold some of the drug. In light of corroborating evidence that supported Mhoons testimony and in light of fact that we are convinced it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error, any error in failing to instruct on accomplices was harmless. (People v. Frye, supra, 18 Cal.4th at p. 966.)
C. Cumulative Error
Defendant next contends the cumulative effect of the two alleged errors relating to Mhoons testimony rendered his trial fundamentally unfair and thus violated his constitutional rights.
The due process clause of the Fourteenth Amendment to the United States Constitution entitles an appellant to a fair trial, but not a perfect one. (People v. Hill (1998) 17 Cal.4th 800, 844, 952 P.2d 673; see also United States v. Hastings (1983) 426 U.S. 499, 508-509.) Our state Supreme Court has explained that it "will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill , supra, 17 Cal.4th at p. 844.) When a defendant relies upon the cumulative error doctrine, "the litmus test is whether defendant received due process and a fair trial" (People v. Kronemyer (1987) 189 Cal. App. 3d 314, 349, 234 Cal. Rptr. 442), and any claim based upon cumulative errors must be assessed "to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence." (Ibid.) Here, we are convinced defendant had a fair trial. The record contains few, if any errors, and no prejudicial error has been shown. On the other hand, the evidence of defendants guilt was strong, as shown in our summary of the facts and as discussed in our analysis of defendants two claimed errors with regard to witness Mhoons testimony. Even when considered together, it is not reasonably probable that, absent the alleged errors, defendant would have received a more favorable result. Accordingly, we find that his claim of cumulative error is not well taken.
D. Cruel and/or Unusual Punishment
Defendant contends his sentence of 25 years to life constitutes cruel and/or unusual punishment under the state and federal constitutions (Cal. Const., art. I, § 17; U.S. Const. 8th Amend.) Specifically, he argues that sentencing him to 25 years to life "for having 21 grams of methamphetamine (whether the drugs were for sale or personal use) based on two convictions which occurred in 1981 violates the California and United States Constitutions" because his current offense "was not violent" and that "neither his crime, his prior serious offenses from 1981 nor his criminal record as a whole justifies the sentence imposed." He then claims he is not the type of violent offender "who is a danger to society."
The People first respond that, because defendant failed to raise the issue of cruel and unusual punishment below, he has not been preserved the issue for consideration on appeal. However, here, since defendant did make a request that the trial court dismiss the prior convictions pursuant to People v. Superior Court (Romero) 1996 13 Cal.4th 497, 917 P.2d 628 and set forth the facts concerning himself and his criminal record in support of that request and the prosecution provided a full response, we chose to consider the cruel and unusual contention to "forestall a subsequent claim of ineffective assistance of counsel [citation] . . . ." (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)(1):
The Eighth Amendment of the federal constitution, applicable to the states through the Fourteenth Amendment, provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." (U.S. Const., 8th Amend.) Article 1, section 17, of the California Constitution likewise declares that "cruel or unusual punishment may not be inflicted or excessive fines imposed." The state and federal prohibitions are not coextensive. (People v. Anderson (1972) 6 Cal.3d 628, 634, 100 Cal. Rptr. 152, 493 P.2d 880.)
Inasmuch as the California Constitutions ban against cruel and unusual punishment arguably affords defendant broader protection than the U.S. Constitutions, we analyze defendants claim only under the California standard. A punishment which satisfies this standard necessarily also satisfies the federal standard. (Cf. People v. Anderson, supra, 6 Cal.3d 628.)
In In re Lynch (1972) 8 Cal.3d 410, 105 Cal. Rptr. 217, 503 P.2d 921 (Lynch) above, the California Supreme Court devised three "techniques" for assessing whether punishment is cruel or unusual. In order to determine if a punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.[fn]" (Id. at p. 424.) Courts should (1) consider "the nature of the offense and/or the offender" (id . at p. 425), (2) compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses (id . at p. 426) and (3) compare the punishment to other punishments imposed by other jurisdictions for the same offense. (Id . at p. 427).
We first consider the nature of the offense and the offender. Regarding the offense, we evaluate "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 defendants involvement, and the consequences of his acts." (People v. Dillon, supra, 34 Cal.3d at p. 479.) We also focus on the particular offenders "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
With regard to this prong of the Lynch analysis, defendants argument is that his present offense was not violent in nature. We conclude an examination of the offenses and offender in this case supports the conclusion that defendants sentence is not cruel or unusual.
In the present case, defendants current offenses involved drug use and the possession of methamphetamine for sale. The current probation report reveals that defendant was 48 years old at the time the report was written. His two strike priors involve two separate incidents five months apart in Minnesota. In each case, defendant robbed a pharmacy of opiates. In the first robbery, defendant entered the pharmacy with another male; one carried a gun while the other carried a fishing knife. In the second robbery, defendant used a .32 caliber semi-automatic gun, and several people were ordered to lie on the floor while he and a codefendant ran out of the door. As a result of these 1981 convictions for the two robberies, defendant was sentenced to a total of 10 years in prison. Defendant also had a separate conviction from another Minnesota county for felon in possession of a firearm. According to the probation report, defendant also has prior felony convictions for "Possession of Burglary Tools, Drugs Prohibitive Acts (3), Aggravated Forgery, and Theft" and prior misdemeanor convictions for "Theft and Driving Under the Influence." Court documents reveal that in 1975 defendant sold a gram of heroin to an undercover officer and that in 1978 he tried to obtain the drug oxycodone from a pharmacy using a prescription he had forged. The probation report indicates that defendants most recent prior felony conviction occurred in 1997 in Minnesota, just two years before the offenses that resulted in the present convictions underlying the instant appeal. Defendant admitted to probation that he began drinking alcohol and smoking marijuana at age 13 and that he began to use cocaine and heroin in his teens while in the military. He admits having been a heroin addict "off and on for the past twenty years."
The trial court in this case carried out the express intent of the Legislature, punishing defendant not merely for his present crime but also for his recidivism. While defendants current offense did not involve violence, we are not persuaded by his unsupported claim that he is not a danger to society given that his criminal record spans 16 years and includes 11 felonies and 8 misdemeanors and given that he has engaged in at least two armed robberies and one forgery in order to obtain opiates, he has been in possession of a firearm despite being a felon on at least one other occasion, he sold and used opiates as early as 1975, he continues to use opiates, and he continues to possess drugs for sale.
In People v. Martinez (1999) 71 Cal.App.4th 1502, 1510 (Martinez), the defendant was convicted of possession of a small quantity of methamphetamine, and we upheld the Three Strike sentence. Here, as in Martinez, "the current crimes alone are not what has earned defendant a life sentence. He is a frequent repeat offender who seemingly has not learned from past incarceration." (Id. at pp. 1510-1511.) The Three Strikes sentencing scheme addresses the career criminal, like defendant. (People v. Stone, supra, 75 Cal.App.4th at p. 717.) "Both in this jurisdiction and in other jurisdictions, habitual offender statutes have long withstood the constitutional claim of cruel and/or unusual punishment." (People v. Ayon (1996) 46 Cal.App.4th 385, 397, disapproved of on other grounds in People v. DeLoza (1998) 18 Cal.4th 585, 600, fn. 10, 957 P.2d 945; accord People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.) In Rummel v. Estelle (1980) 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, the United States Supreme Court upheld a life sentence imposed on a defendant following his third theft-related felony conviction, although the total loss from his three crimes was less than $ 230. Concluding the sentence was not cruel and unusual, the court explained that "the purpose of a recidivist statute such as that involved here 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 persons 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. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Id . at pp. 284-285.)
Defendants current crime is not determinative; his sentence must be considered in the context of his record, which spans several years and encompasses violent and nonviolent felony convictions, including two convictions for armed robbery, as well as many misdemeanor convictions.
Our prior decision in Martinez is instructive. In that case, police stopped Martinez for driving while intoxicated. After Martinez refused to take a sobriety test, a search found methamphetamine on Martinezs person and a forced blood sample revealed that Martinez consumed phencyclidine. (71 Cal.App.4th at pp. 1507-1508.) Martinezs criminal history is similar to defendants. Prior to his current offense, Martinez suffered three serious felony convictions, including personal use of a deadly weapon, robbery, and attempted robbery. Martinez also had suffered three felony convictions for either public intoxication or use of a controlled substance, two convictions for battery, one conviction for brandishing a deadly weapon, and one conviction for assault. (Id. at p. 1512.) Martinez was sentenced to life imprisonment under the Three Strikes law for possessing methamphetamine and attempting to deter a peace officer from carrying out his duties. Although his final offenses were neither violent nor serious, we determined that his sentence did not "shock the conscience" and that "defendants recidivism warrants lengthy incarceration." (Id. at pp. 1512, 1517.)
Here, as in Martinez, we do not consider defendants drug abuse as a mitigating factor in sentencing. "The record demonstrates defendant has had lifelong problems with alcohol and drugs. However, drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment. [Citations.] It is notable that defendant appears to have become seriously committed to seeking treatment after incarceration on charges carrying a life term . . . but the law still holds such an individual responsible for his or her behavior." (People v. Martinez, supra, 71 Cal.App.4th at p. 1511.) Here, defendants criminal history reveals a long pattern of illegal conduct and an inability to conform his behavior to the dictates of the law. The seriousness of defendants current offense and his continuous criminal history when not in custody establishes that he is a recidivist offender who poses a danger to society. The punishment imposed in this case was not disproportionate to the nature of his offense given his recidivist history.
Lynch next requires defendant to prove that his punishment was more severe than other more serious crimes in California. (Lynch , supra, 8 Cal.3d at pp. 427-429.) Although defendant does not specifically address this prong of the Lynch analysis, we briefly respond to the theoretical argument that his punishment for his current felony offense is disproportionately greater than punishment for other first-time and recidivist offenders in our state. Because defendants prior and present convictions together are responsible for his punishment in this case (People v. Askey, supra, 49 Cal.App.4th at p. 388), we only consider whether defendants punishment for his current offense with two prior strikes is disproportionately greater than the punishment imposed for more serious crimes accompanied by two strike convictions. In that regard, we note that Californias Three Strikes law treats all third offenders with two prior strike convictions the same way (see Martinez, supra, 71 Cal.App.4th at p. 1512) and that, historically, habitual offender statutes and Three Strikes statutes have withstood cruel and unusual challenges. (See, e.g., In re Rosencrantz (1928) 205 Cal. 534, 539, 271 P. 902; People v. Weaver (1984) 161 Cal. App. 3d 119, 126, 207 Cal. Rptr. 419; People v. Gray, supra, 66 Cal.App.4th at pp. 992-993; Martinez, supra, 71 Cal.App.4th at pp. 1511-1512, 1517; People v. Kinsey, supra, 40 Cal.App.4th at p. 1631.) It is within the punishing jurisdictions discretion to decide the amount of time a recidivist will serve isolated from society (Rummel v. Estelle, supra, 445 U.S. at pp. 284-285), and California has decided that recidivism in the commission of multiple felonies poses a manifest danger to society which justifies the imposition of a longer sentence. (People v. Karsai (1982) 131 Cal. App. 3d 224, 242, 182 Cal. Rptr. 406, overruled on other grounds in People v. Jones (1998) 46 Cal.3d 585, 600, fn. 8, 250 Cal. Rptr. 635, 758 P.2d 1165.)
Thus, any comparison to the sentence of a first time murderer who uses a deadly weapon is flawed, the proper comparison being to a recidivist murderer, whose punishment would be death or life without parole. "The commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies." (People v. Cooper, supra, 43 Cal.App.4th at p. 826.)
Given defendant is a repeat offender, his sentence must be compared with that of other recidivists with a similar record. We conclude such a comparison reveals that defendants state prison sentence of 25 years-to-life is not cruel and unusual. (Martinez, supra, 71 Cal.App.4th 1502.)
The third prong of the Lynch test requires comparison of punishment for the same offense in other jurisdictions. (Lynch , supra, 8 Cal.3d at p. 427.) With regard to this prong, defendant makes no substantive argument. We simply note that, while Californias Three Strikes scheme is among the toughest in the nation, that does not in itself prove that it is cruel and unusual punishment. Nothing in the law requires California "to march in lockstep with other states in fashioning a penal code." (Martinez, supra, 71 Cal.App.4th at p. 1516.) In People v. Ingram, supra, 40 Cal.App.4th 1397, 1413-1416, the court similarly noted that "Californias Three Strikes scheme is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders." (See also Annot., Imposition of Enhanced Sentence Under Recidivist Statute as Cruel and Unusual Punishment (1976) 27 A.L.R. Fed 110, 117-118, and 2000 Supp., pp. 15-32.) That Californias recidivist scheme may be more extreme than others does not compel the conclusion that it is unconstitutionally cruel or unusual; "nothing in the prohibition against cruel or unusual punishment per se disables a state from responding to changed social conditions and increasing the severity with which it treats its recidivist felons." (People v. Cooper, supra, 43 Cal.App.4th at p. 827.)
The United States Supreme Court decided that a statutory scheme resulting in life imprisonment for a nonviolent felony does not violate the federal constitutional prohibition against cruel and unusual punishment. (Rummel v. Estelle, supra, 445 U.S. at pp. 284-285.) This court recently undertook an extensive comparison of Californias habitual offender statutes with other states habitual offender statutes. (Martinez , supra, 71 Cal.App.4th at pp. 1513-1516.) We discovered that the spirit of Californias Three Strikes law is not uncommon, that most states make some provision for increasing a habitual offenders punishment. (Id. at p. 1513.) While defendants sentence would be treated differently in some other states, Californias punishment is not the harshest. For example, both Louisiana and Mississippi impose life sentences without parole. (Id. at p. 1516.) Specifically, Mississippi requires life imprisonment for a third felony if any of the prior felonies were violent. (Id. at p. 1514.) Rhode Islands scheme also is similar to Californias Three Strike law; although discretionary, Rhode Island provides for a 25 year to life sentence for a third felony conviction. (Id . at p. 1515.) In Martinez, we acknowledged "that California is among the few states that impose a life sentence for a third felony conviction that is neither violent nor serious where at least one prior crime involved violence." (71 Cal.App.4th at p. 1516.) Nevertheless we concluded, "that Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. . . . [P] The needs and concerns of a particular state may induce it to treat certain crimes or particular repeat offenders more severely than any other state. . . . [P] Whether a particular punishment is disproportionate to the offense is a question of degree. The choice of fitting and proper penalty is not an exact science but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. In some cases, leeway for experimentation may be permissible. Thus, the judiciary should not interfere in the process unless a statute prescribes a penalty "out of all proportion to the offense." (People v. Cooper, supra, 43 Cal.App.4th 815, 827, quoting In re Lynch, supra, 8 Cal.3d at pp. 423-424.)" (Martinez, supra, 71 Cal.App.4th at p. 1516.) While Californias laws are severe, we are convinced they do not rise to the level of cruel and unusual punishment.
In support of his claim that his sentence is grossly disproportionate to his culpability, defendant relied upon two Ninth Circuit cases, Andrade v. Attorney General of State of California (9th Cir. 2001) 270 F.3d 743, cert. granted sub nom Lockyer v. Andrade (2002) 535 U.S. 969 [122 S. Ct. 1434, 152 L. Ed. 2d 379] and Brown v. Mayle (9th Cir. 2002) 283 F.3d 1019 (Brown). Since the briefing in this case, the United States Supreme Court decided Andrade and concluded that our state appellate court did not unreasonably apply clearly established federal law by affirming the defendants sentence of two consecutive terms of 25 years to life under our states Three Strikes Law when the defendants most recent convictions were for two counts of petty theft with a prior theft conviction. (Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, ___ U.S. ___ .) The reasoning in Brown has been rejected by Martinez. When certiorari was granted in Brown, the judgment was vacated. (Mayle v. Brown (2003) 155 L. Ed. 2d 220, ___ U.S. ___ .) On remand for further proceedings the Ninth Circuit issued an opinion not selected for publication in the Federal Reporter. (Brown v. Mayle (9th Cir. 2003) WL 21349784.) In any event, to the extent Ninth Circuit cases may be considered for their persuasive effect (People v. Bradford (1997) 15 Cal.4th 1229, 1305, 939 P.2d 259), we find the Brown decision unpersuasive.
Of course, analyzing whether a prison sentence is unconstitutionally cruel or unusual must be tailored to the individual defendant. Our prior opinion in Martinez and conclusion about Mr. Martinez does not dictate our conclusion regarding the defendant in the present case. Here, while defendant is neither the most violent criminal nor the most frequent recidivist, his current record of several felony convictions, including two armed robberies, supports the need for lengthy incarceration. Under these circumstances, we conclude that, under either the California or the federal constitution, the trial courts decision to impose the term of 25 years to life was not "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Citation.]" (In re Lynch, supra, 8 Cal.3d at p. 424.)
Taking into account the totality of the circumstances and not only the nature of the current crime, we conclude the punishment imposed is not constitutionally infirm.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., and Wunderlich, J.