Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CH020332, CH021290
BUTZ, J.
A jury found defendant Maurice O’Neil guilty of seven counts of battery upon a non-confined person while confined in state prison. (Pen. Code, § 4501.5.) The jury also found defendant had five prior serious felony convictions. (§ 667, subds. (b)-(i).) Sentenced to an aggregate term of 75 years to life, defendant appeals. He contends the trial court erred in refusing to accept his plea pursuant to a plea agreement. He also contends the court should have stayed sentence on two of the counts pursuant to section 654 and that his sentence constitutes cruel and usual punishment in violation of the state and federal Constitutions. We shall affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was an inmate at High Desert State Prison in Lassen County and was housed in his own cell. While incarcerated, he committed batteries upon several correctional officers. We shall set forth the facts of each offense with the corresponding counts.
Count I: On May 25, 2003, Officer Steven Doyle was performing a welfare and security check of the upper tier for A section, where defendant was housed. While standing in front of defendant’s cell, he was “sprayed by a liquid substance” coming from defendant’s cell. The substance hit him on his right shoulder.
Count II: As Officer Doyle turned toward defendant’s cell, he saw defendant dip a milk carton into the toilet, grab water, and throw it at the door’s food port. The water went through the food port and struck Doyle on his left shoulder and face shield.
Count III: Officer Doyle left the tier and reported the incidents to his supervisor. He then returned to defendant’s cell to turn off the water so defendant would not be able to strike other officers with water. Doyle turned off the water through a door that is adjacent to, but outside, defendant’s cell. As he was turning off the water, defendant again threw a liquid substance at Doyle, through an opening on the side of the door. The liquid struck Doyle on his left shoulder and face shield.
Count IV: On June 5, 2003, Officer Darren Nystrom was delivering food trays to the inmates. While standing in front of defendant’s cell, he was struck by a liquid substance coming from defendant’s cell. The substance hit him in the eye (having gone underneath his face shield) and on his left arm. He turned and saw defendant holding a milk carton.
Count V: On December 5, 2003, Officer Doyle and another correctional officer were feeding inmates in defendant’s tier. After Doyle gave defendant his food tray through the food port, defendant threw a liquid substance through the food port. The substance hit Doyle on the right shoulder.
Count VI: On April 14, 2004, Officer Christopher Caudill was feeding inmates in defendant’s tier. When he delivered defendant his meal, defendant threw Crystal Clear cleaning fluid at him. Caudill saw defendant use a milk carton to throw the liquid at him through the open food port. The substance hit Caudill’s face shield, left ear, and the back left side of his neck, causing redness and irritation to his neck.
Count VII: On August 24, 2004, Officer Nystrom was escorting inmates to the shower. As he passed defendant’s cell, defendant threw a liquid substance at him through the security port of his cell. The substance struck Nystrom in his face shield and on his right ear.
The information in Lassen County case No. CH020332, charging defendant with the three counts of battery on May 25, 2003, in violation of section 4501.5, was filed on July 21, 2004. Defendant pleaded not guilty on August 17, 2004. Thereafter, defendant committed the offense set forth in count VII. A complaint in Lassen County case No. CH021290 was filed September 2, 2004, charging defendant with five additional counts of battery. Defendant pleaded not guilty on September 14, 2004, and opposed the People’s motion to consolidate the two cases. The cases were consolidated on March 22, 2005. The consolidated information was subsequently amended on March 28, 2006, to allege the seven counts as set forth above.
DISCUSSION
I. Refusal to Accept Change in Plea
Defendant contends the trial court erred in refusing to accept an early plea agreement. We disagree.
Before a defendant pleads guilty, he must be advised and make a knowing and intelligent waiver of his rights of self-incrimination, confrontation, and a jury trial. (Boykin v. Alabama (1969) 395 U.S. 238, 243-244 [23 L.Ed.2d 274, 279-280]; In re Tahl (1969) 1 Cal.3d 122, 131-132.) The record must also show that the defendant understood the nature and consequences of his plea. (Boykin, supra, 395 U.S. at pp. 242-244 [23 L.Ed.2d at pp. 279-280]; Tahl, supra, 1 Cal.3d at pp. 130-132.) The trial court is charged with assuring that the record adequately and affirmatively reflects that the plea is voluntary and intelligent under the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1178-1179 (Howard).)
On September 15, 2004, prior to consolidation of the two cases, case No. CH021290 came on for preliminary hearing. Judge Ridgely L. Lazard, who was presiding at the hearing, stated that he understood there was a disposition. Defendant’s attorney, Michele Verderosa, described the proposed disposition as follows:
The trial court granted defendant’s subsequent Marsden motion on April 26, 2005 (People v. Marsden (1970) 2 Cal.3d 118), and Rex Gay was appointed to represent defendant. Attorney Gay was relieved on September 20, 2005, due to his impending retirement, and Tom Clute was appointed. On December 20, 2005, the trial court granted defendant’s second Marsden motion and relieved Attorney Clute. On February 1, 2006, after obtaining a court-ordered psychiatric evaluation, the court determined defendant was unable to represent himself and appointed John Lawson to represent defendant.
“Your Honor, I just spent the last 30 minutes talking to [defendant] and he has signed the plea and waiver form. He is willing to plead to the first four counts in the complaint in case No. CH021290 with the understanding that the remaining count in that case as well as the three counts in his previous case are, on case No. CH020332, will be dismissed.
“He further understands he will be waiving application for probation and he would be receiving the midterm for the principal term plus one-third the mid[term] for the subsequent terms and he would be admitting the strike, the prior strike allegation for a total of twelve years to be served consecutively to his current sentence.”
Attorney Verderosa stated that she explained to defendant that the current offenses were not strikes, but that there was a strike allegation for a prior offense alleged. She also stated that defendant “has gone over his constitutional rights with [her] and he would like the Court to know that he is not happy about this, but that this is his wishes (sic) at this time.”
The court asked defendant if the signature on the last page of the plea and waiver form and the initials in the boxes were his and defendant responded affirmatively. The court then asked, “Do you have any questions about this form that you fill[ed] out? Do you have any questions about this form?” Defendant took a moment to confer with counsel and then the following colloquy took place.
“THE COURT: Mr. O’Neil, do you have any questions about the pink form you filled out? You have to speak out loud so I can hear you. Mr. O’Neil, can you hear me?
“[DEFENDANT]: Yeah, I heard you, man.
“THE COURT: Do you have any questions about the form that you filled out?
“[DEFENDANT]: There’s a lot of stuff on there I don’t that I don’t understand.
“THE COURT: I’m sorry?
“[DEFENDANT]: There’s a lot of stuff on there that I don’t understand.
“THE COURT: Ms. Verderosa, have you gone over the form with him?
“MS. VERDEROSA: I have gone over the form with Mr. O’Neil, I have explained to him his constitutional rights and he has a right to a speedy and public jury trial and Mr. O’Neil has explained back to me what a jury trial is and I’m confident that he understands what a jury trial is.
“I also explained to him he has the right to confront witnesses against him, that is to see, hear and cross-examine the witnesses the prosecution will bring in.
“I have explained to him he has the right to testify, but no one can make him testify. He has the right against self-incrimination. I also explained to him he has the right to court subpoena and bring witnesses in on his own behalf and in the conversation I had with Mr. O’Neil, I’m pretty sure he understands what those rights are.
“THE COURT: Do you understand all those rights, sir?
“[DEFENDANT]: Yeah, I understand some of them.
“THE COURT: Can I see counsel?
“(Whereupon, a discussion was held between Court and counsel outside the hearing of the reporter.)
“THE COURT: I’ve had a discussion with counsel and I don’t think at this time that Mr. O’Neil understands all of his rights enough at least to take his plea, so I’m not going to take his plea at this time.”
The court, counsel, and defendant went on to discuss and waive the preliminary hearing, after defendant stated he understood all his rights with respect to the hearing and waiver.
Defendant and Attorney Verderosa conferred several times during the discussion and waiver of his preliminary hearing rights.
Defendant now contends that the record did not clearly demonstrate that he lacked sufficient understanding of his rights. This contention borders on frivolous.
Counsel had spent a half hour explaining the plea form to defendant. Yet, upon questioning, defendant specifically stated that there was a lot on the plea agreement form that he did not understand. When asked if he understood his constitutional rights, he restricted his response by specifying that he understood “some” of them. The court then conferred, off the record, with counsel and concluded that defendant did not sufficiently understand the plea form or his constitutional rights in order to enter a guilty plea at that time. The record completely and unequivocally supports the trial court’s conclusion.
Defendant next contends that, once the trial court concluded he did not understand the plea form and his rights, it had an affirmative duty to attempt to explain those things to him. To support his contention, he quotes the following language from In re Ibarra (1983) 34 Cal.3d 277 (Ibarra): “[A] defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge. The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney. If the questioning of defendant and his attorney leads the judge to believe that the defendant does not in fact fully comprehend his rights, or the consequences of pleading guilty, however, the judge must conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights.” (Ibarra, at p. 286, italics added, disapproved on other grounds in Howard, supra, 1 Cal.4th at pp. 1174-1175.)
Defendant’s expansive interpretation to include an affirmative duty to further advise defendant of his rights in this case ignores the context of the foregoing language.
In Ibarra, the defendant entered into a plea agreement and later claimed his plea was involuntary because he had not been properly advised of his rights. (Ibarra, supra, 34 Cal.3d at p. 281.) The high court considered whether a validly executed waiver form may act as a proper substitute for admonishment by the trial court in a felony case. The court held that “in those felony cases which do not involve special circumstances which might indicate that a plea is otherwise involuntary, reliance on such a form by the trial court is sufficient to satisfy the dictates of [Boykin v. Alabama, supra, 395 U.S. 238 and In re Tahl, supra, 1 Cal.3d 122.].” (Ibarra, at p. 285.) Thus, a validly executed waiver form may act as a proper substitute for a personal admonishment by the court. (Ibid.; see also People v. Panizzon (1996) 13 Cal.4th 68, 83.) It is only when, despite the executed plea form, the court has reason to believe the defendant does not fully comprehend his rights, that it must conduct further examination to ensure the plea is knowing and intelligent before accepting the plea. (Ibarra, supra, 34 Cal.3d at pp. 285-286.)
Nothing in Ibarra creates an affirmative duty on the trial court to make attempts to explain rights to a defendant who does not understand them, even after discussing them with counsel, before refusing to accept a change in plea. Here, because the court had reason to believe that, despite defendant’s execution of the written plea form, he did not fully understand his rights, under the rule in Ibarra and its progeny, the court could not accept defendant’s change of plea without further examination to ensure that the plea was knowing and voluntary. As the court did not do so, it did not err.
II. Section 654 Stay
Counts I, II, and III relate to defendant’s May 25, 2003 batteries upon Officer Doyle. The trial court ran the 25-year- to-life sentences on counts II and III concurrently with the 25-year-to-life sentence on count I. Defendant contends that the trial court erred in failing to stay counts II and III pursuant to section 654. We find no error.
In relevant part, section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) The purpose of section 654’s protection against multiple punishments is to ensure that the defendant’s punishment will be commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.)
Although section 654 speaks in terms of “an act or omission, ” it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. (People v. Beamon (1973) 8 Cal.3d 625, 639.) “[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor.” (People v. Perez, supra, 23 Cal.3d at p. 551.)
On the other hand, “‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment....’... This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935, citations omitted; see also People v. Andra (2007) 156 Cal.App.4th 638, 640.) Thus, although the defendant maintains one criminal objective, he may be convicted and punished for each successive crime of violence against the same victim. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1256; see also People v. Trotter (1992) 7 Cal.App.4th 363, 367-368 [rule particularly applicable if the defendant had an opportunity to reflect between offenses and each offense created new risk of harm].)
“Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court, and the trial court’s findings will not be disturbed on appeal if they are supported by substantial evidence.” (People v. Kwok, supra, 63 Cal.App.4th at pp. 1252-1253.) Here, the trial court’s findings are supported by substantial evidence.
“[T]his was not a case where only one volitional act gave rise to multiple offenses.” (People v. Trotter, supra, 7 Cal.App.4th at p. 368.) Nor was it a case where the commission of one crime facilitated the commission of another. (See, e.g., Neal v. State of California (1960) 55 Cal.2d 11, 19-20 [attempt to murder the victim by committing arson].) Rather, this was a case where defendant committed successive acts of violence against Officer Doyle between which he had time to pause and reflect about what he was doing. While substantially more time elapsed between defendant’s second and third batteries, the trial court was entitled to conclude that the separation in time between each of the crimes afforded defendant ample opportunity to “reflect” upon his crime and then “renew” his criminal behavior. (People v. Gaio, supra, 81 Cal.App.4th at p. 935.) We find no error.
III. Cruel and Unusual Punishment
Prior to the commission of his current offenses, defendant had numerous prior serious felonies (statutes referenced are to those former versions then in effect): (1) two 1982 convictions for forcible sodomy on a child (Pen. Code, § 286, subd. (c)); (2) a 1992 conviction for oral copulation with a child under the age of 14 and inflicting great bodily injury (Pen. Code, §§ 288a, subd. (c), 12022.8); (3) a 1992 conviction for assault with intent to commit sodomy (Pen. Code, §§ 220, 286, subd. (c)); (4) a 1992 conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)); and (5) a 1992 conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). He also had two 1986 burglary convictions (Pen. Code, § 459), a 1987 conviction for vehicle theft (Veh. Code, § 10851), and two violations of parole which resulted in his return to prison.
Defendant has spent most of his adult life in prison. He was serving a 19-year sentence when, on seven separate instances, he threw liquid on correctional officers as they performed their duties. Thus, at 44 years of age, defendant has now accrued a total of 16 felony convictions, including five strike offenses. It is with this criminal history that defendant contends his sentence of 75 years to life constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution.
Recognizing that his challenge may have been forfeited because he failed to raise it in the trial court, defendant contends his trial counsel was ineffective in failing to preserve it for appeal. (See People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) We conclude there is no merit in defendant’s constitutional challenge. For this reason, trial counsel was not ineffective in failing to make the argument at sentencing. (See People v. Osband (1996) 13 Cal.4th 622, 678, 700-702.)
A. California Constitution
The California Constitution prohibits “[c]ruel or unusual punishment.” (Cal. Const., art. I, § 17.) “A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California and the court should not lightly encroach on matters which are uniquely in the domain of the Legislature.” (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)
A punishment may violate the California Constitution “if, although not cruel or unusual in its method, 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.) Lynch identified three techniques used by courts in applying the rule: first, examining the nature of the offense and the offender (id. at p. 425); second, comparing the punishment with those for more serious crimes in the same jurisdiction (id. at p. 426); and, third, comparing the punishment with those imposed for the same offense in other jurisdictions (id. at p. 427).
Defendant contends that his 75-year-to-life sentence for seven convictions of throwing toilet water and cleaning fluids on correctional officers is grossly disproportionate to his criminal conduct so as to shock the conscience and offend fundamental notions of human dignity. We disagree.
Defendant admits his criminal history is lengthy and serious. Relying on People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony), however, he argues that his punishment is unconstitutional because it is disproportionate to his current offense, upon which it must be primarily based.
In Carmony, the two strike appellant’s predicate offense was failing to register his current address as a sex offender within five working days of his birthday. (Carmony, supra, 127 Cal.App.4th at p. 1071.) The previous month, however, he had registered that information when he changed his residence. (Ibid.) Carmony held the offense was “no more than a harmless technical violation of a regulatory law” because the appellant had provided the state with his current address and, therefore, had not deprived the state of the information for which the purpose of the registration statute had been enacted, to wit, keeping track of registered sex offenders. (Id. at pp. 1072-1073.) Under those circumstances, the term of 25 years to life violated federal and state proscriptions against cruel and/or unusual punishment. (Id. at p. 1075.)
While defendant acknowledges that, unlike Carmony’s failure to register as a sex offender, his crimes were not “passive, ” he, nonetheless, attempts to characterize his current offenses as “innocuous.” Prisoner assault on a correctional officer is far from innocuous. Maintaining institutional security and preserving internal order and discipline is essential within our state prisons. (Bell v. Wolfish (1979) 441 U.S. 520, 546 [60 L.Ed.2d 447, 473].) In fact, the Legislature has determined that prisoner assault on a noninmate is such a serious offense that, had these same offenses been committed by a life prisoner (instead of a prisoner serving 19 years, such as defendant), they would have resulted in seven additional strike offenses. (§§ 667, subds. (b)-(i), 1192.7, subd. (c)(12).) Defendant’s current offenses are quite serious.
Defendant next argues that his sentence is out of proportion with the punishments for more serious crimes in California by pointing out that he would have received the same sentence had his new offenses been strike offenses. Defendant relies again on Carmony as support for his position that this system is unfair.
Carmony does not stand for the proposition that the three strikes law, imposing a sentence of 25 years to life upon three strike offenders, is unconstitutional. In Carmony, this court stated that “a one-size-fits-all” 25-year-to-life sentence, which does not allow for gradations in culpability between crimes, is disproportionate to the current offense where the offense is minor and the prior convictions are remote and irrelevant to the offense. (Carmony, supra, 127 Cal.App.4th at p. 1088.) Such is not the case here. As we have previously stated, defendant did not commit a single, minor offense. Unlike Carmony, in which the defendant’s current offense was “a harmless violation of a regulatory requirement” (id. at p. 1087), defendant here committed seven quite serious offenses. Additionally, we do not consider defendant’s criminal history remote, even though his last convictions were in 1992, as he was still serving his sentence for those offenses.
Finally, defendant performs a survey of the five other jurisdictions with the next highest prison populations after California, and compares the potential sentence he may have received in each jurisdiction. Defendant surveys Texas, Florida, New York, Georgia, and Ohio. The result of defendant’s survey is that, according to defendant, had he committed his offenses in New York, Georgia or Ohio, his sentence would have been substantially lower (between one and seven years). On the other hand, defendant calculates that, had he committed his offenses in Florida, he could have received a sentence of 70 years. And had he committed them in Texas, he would have received a sentenced of “life, or for any term of not more than 99 years or less than 25 years.”
Most states have enhanced sentences for habitual offenders. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1513.) Even according to defendant’s own survey, California is in step with two of the five jurisdictions to which he compares. In any event, the fact that defendant’s current offenses might not qualify for recidivist sentencing in other states, or that some other states (such as New York) may not have designated assaults on correctional officers as felonies, does not render the California punishment cruel or unusual. “That California’s 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. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’” (Martinez, supra, 71 Cal.App.4th at p. 1516.)
In sum, we conclude that defendant’s sentence is not grossly disproportionate to his offenses.
B. United States Constitution
In considering a federal constitutional challenge, the steps of the analysis are virtually identical to those applied by California courts under the state Constitution. (People v. Ayon (1996) 46 Cal.App.4th 385, 396, disapproved on a different ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) Our review of United States Supreme Court jurisprudence on this subject reveals no violation of the federal prohibition against cruel and unusual punishment. (See Lockyer v. Andrade (2003) 538 U.S. 63, 76-77 [155 L.Ed.2d 144, 159] [two consecutive 25-year-to-life terms for conviction on two petty theft charges not cruel and unusual]; Ewing v. California (2003) 538 U.S. 11, 30-31 [155 L.Ed.2d 108, 123] [25 years to life for grand theft of golf clubs was not cruel and unusual]; Rummel v. Estelle (1980) 445 U.S. 263, 266 [63 L.Ed.2d 382, 386] [life sentence under Texas recidivist statute for obtaining $120.75 by false pretenses after previous convictions for credit card fraud and passing a forged check does not violate United States Constitution].)
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J. ROBIE, J.