Opinion
F059957
09-08-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS RAY ROLAND, Defendant and Appellant.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09CM0491)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Thomas Ray Roland was sentenced to prison for a term of 25 years to life after pleading guilty to evading the process of the court and admitting he had suffered three prior serious felonies that qualified as strikes. He appeals arguing that the trial court abused its discretion when it refused to strike two of his prior strike convictions and when it refused to reduce his crime to a misdemeanor, his sentence is cruel and/or unusual punishment, and his trial counsel was ineffective.
STATEMENT OF THE CASE AND FACTS
On January 9, 2009, defendant failed to appear for sentencing on his conviction for felony evading a peace officer. As a result, he was charged with willfully and unlawfully failing to appear, a violation of Penal Code section 1320.5, and it was alleged that he had suffered three prior serious felonies that qualified as strikes. Defendant entered a guilty plea to the new charge and admitted the three prior convictions.
Defendant filed a motion to dismiss two of his strikes and to reduce his current conviction from a felony to a misdemeanor. As to his motion to dismiss, defendant argued that the nature of the current offense, the nature of the offense for which he failed to appear, the nature of the strike offenses, and his background in general when combined, should result in the trial court striking his prior serious felony convictions.
The strike offenses arose from defendant's activities on May 1, 1992. On that date defendant (who was 17 years old) and a group of males entered a Kmart store in Fresno. Some of the men were armed and shots were fired. The men fanned out inside the store. One of the men took a woman's purse from her shopping cart. A clerk in the store was pushed down. A customer in the store was hit in the face, possibly with a baseball bat. The customer lost several teeth. An employee in the sporting goods department reported that some of the perpetrators broke a glass display case holding rifles and ammunition. A clerk in the jewelry department said that one man put a tray of watches under each arm. An employee in the electronics department described how the perpetrators took television sets. Camcorders and cameras were also taken. Video surveillance showed defendant entering the store, carrying a beer bottle. When he exited the store he was carrying a television set. A beer bottle left in the store had defendant's fingerprints on it.
Defendant was charged with three counts of second degree robbery: one count for the taking from the sporting goods department employee; one count for the taking from the jewelry department employee; and one count for the taking of the televisions. The loss to the store was over $36,000. Defendant was found unfit for juvenile court proceedings, pled guilty to all counts, and was sentenced to state prison.
These facts are taken from the probation officer's report from 1992 which the trial court admitted as an exhibit. Defense counsel filed a declaration stating that he had reviewed defendant's court file. Defense counsel declared that the assistant manager was the victim in count one, the customer who had her purse stolen was the victim in count two, and the shopper who was struck in the face was the victim in count three. Defense counsel also stated that a court-ordered psychological examination of defendant determined that he was "'functioning at the mildly retarded level.'"
At the time defendant committed the robberies, he had a prior juvenile record. He came to the attention of law enforcement on several occasions in 1990. He drove without a license, insurance, or seat belt fastened; he drove without a license again; he drove erratically without a license in his possession leading officers on a high-speed chase while in possession of a loaded 12-gauge shotgun; he resisted arrest and he fought with officers. In 1991, he was found in possession of rock cocaine and two shotguns. In a separate incident, he was found in a stolen Cadillac; when officers saw him, he fled. Most of defendant's behavior resulted in court-imposed consequences; some of it was dismissed with right to comment reserved. According to the probation report, defendant was on juvenile probation from 1988 to 1992. He reoffended while under supervision and did not complete his work program obligations.
The facts of the offense for which defendant failed to appear are not contained in the probation officer's report for the current offense. Defense counsel claims that, in that case, a truck was seen leaving a business where an alarm was sounding. The police officer pursued the truck at speeds approaching 100 miles per hour for six minutes. The truck eventually stopped and defendant surrendered.
Defendant's apprehension in the current case occurred in April 2009 in Dallas, Texas. Defendant subsequently told the probation officer that he failed to appear because he was afraid about being sentenced, he wanted to move his children away from Fresno, and he wanted to be available for his son who had been shot in the face.
The probation officer's report listed defendant's prior adult record. After being returned to prison three times for violating his parole, he was discharged in 1999. Between 2001 and 2003, defendant was convicted three times for driving with a suspended license and incurred a pending charge for driving under the influence and driving with a suspended license. In 2003, he was convicted of receiving stolen property and, in 2006, was sentenced to jail. In 2008, he was sentenced to one year in jail for misdemeanor violations of battery, criminal threats, and false imprisonment; he was also convicted of possession of marijuana for sale. Later that year, he was convicted of felony evading. (This was the sentencing hearing where he failed to appear.) He was subsequently sentenced on the evading conviction to six years in state prison.
Regarding the motion to reduce his current conviction to a misdemeanor, defense counsel explained that defendant's son had been shot in the face prior to his sentencing hearing in the evading case, he was prepared to accept his sentence, but then the People informed him that they would be seeking a term of 25 years to life rather than six years in prison. Defendant was worried about his son and the prospect of spending the rest of his life in prison. Defense counsel said that defendant regretted his decision to run.
The trial court denied both motions. It first ruled on defendant's motion to reduce his conviction to a misdemeanor. The court considered defendant's prior record and noted that his convictions from 1992 were for three violent felonies. Since that time defendant had continued on a path of committing misdemeanor offenses that were becoming more serious in nature. His contacts with law enforcement were substantial. As for the current offense, the court noted its obligation to protect society, to punish defendant, and to demonstrate the consequences of his criminal behavior.
The trial court then considered and ruled on defendant's motion to strike the prior serious felonies. Defense counsel argued they were not seeking to strike all three but, instead, to have them considered as one single strike for sentencing purposes. Counsel argued the convictions all arose from a single incident that occurred during the time when rioting followed the acquittal of police officers in the beating of Rodney King. While defendant was an aider and abettor in the robberies, there was no evidence he was the actual perpetrator of any of the violent acts. Defense counsel detailed defendant's life, including being the son of an absent father, having developmental disabilities, struggling with substance abuse, and being surrounded by gangs, drugs, and alcohol in his neighborhood. It was pointed out that defendant had not returned to prison since he had been released the last time on parole and had periods of time with no criminal behavior. He did revert to substance abuse, but that was due to the deaths of his brother and grandfather. Defense counsel argued defendant had not engaged in violent conduct since his final release from prison. He said defendant was a young man (35 years old), and a husband and father who mentored his children in sports and tried to make a difference in the community. Counsel described defendant as a "talented mechanic."
The trial court denied the motion to strike one or more of defendant's prior convictions. The court considered the points raised by defendant's counsel. It noted defendant's juvenile record, including the weapons found on more than one occasion in defendant's vehicle, and detailed defendant's adult criminal record. The court found that defendant's prior serious felony offenses involved substantial violence and exposed the public to serious danger. The court considered the current crime to be significant because defendant, subject to being sentenced by the court, left the jurisdiction and traveled to another state thereby avoiding responsibility for his actions. While the court found defendant's strike convictions did occur during a single course of conduct, there were separate victims, substantial violence, and defendant's involvement was not minimal. Prior to defendant committing those offenses he had a significant juvenile record and subsequent to his state prison term, he continued to incur a significant record.
The court sentenced defendant to a term of 25 years to life.
DISCUSSION
I. Denial of Romero Motion
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court "'held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to ... section 1385(a).'" (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).)
Penal Code section 1385, subdivision (a), provides that a "judge ... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."
"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (Carmony, supra, 33 Cal.4th at p. 374.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
"[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 528.) In reviewing a motion to strike prior convictions and in considering such a motion in the trial court, "'the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.'" (Carmony, supra, 33 Cal.4th at p. 377.)
"'[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.'" (Carmony, supra, 33 Cal.4th at p. 378.)
Defendant sets forth his past criminal history, the facts of the current crime, his ties to the community, and the facts behind his strike convictions in arguing the trial court abused its discretion when it refused to treat all his robbery offenses as one strike. He relies primarily on People v. Burgos (2004) 117 Cal.App.4th 1209 to support his position.
In Burgos the defendant was convicted of second degree robbery and assault by means likely to produce great bodily injury with the personal infliction of great bodily injury. It was found that the defendant suffered two prior serious felonies that qualified as strikes: a prior conviction for attempted carjacking and a conviction for attempted robbery. (People v. Burgos, supra, 117 Cal.App.4th at p. 1211.) The prior convictions related to an incident during which Burgos and two companions approached a man and demanded his car. Burgos and his companions were frightened off before they could actually take the car. (Id. at p. 1212, fn. 3.) The court found such facts constituted two offenses arising from the same act; it also noted that Penal Code section 215, subdivision (c), precluded sentencing on both offenses. (People v. Burgos, supra, 117 Cal.App.4th at p. 1216.) The court described Burgos's criminal history as containing primarily misdemeanor convictions, and his current offense as not being "the worst of crimes." (Ibid.)The court concluded "that, in view of the particular offenses that constituted the two prior strike convictions in this case, it was an abuse of discretion to fail to strike one of those convictions in furtherance of justice under Romero ... and section 1385." (Id. at pp. 1216-1217.)
Although this defendant's prior strike convictions occurred during a single period of aberrant behavior, unlike Burgos, each offense involved a separate victim and involved substantial violence and his convictions did not arise from a single act.
This was the critical point in the decision in Burgos, any other similarities or dissimilarities between the two cases are not relevant.
The trial court reviewed all the materials submitted to it and balanced all the relevant facts in making its determination. Defendant committed three serious felonies that posed a substantial threat of violence and danger. He had a long line of criminal behavior beginning before the strike offenses and continuing forward to the current offense. He demonstrated a continuous pattern of disregard for the law. As such, the trial court did not err when it refused to exercise its discretion to treat all three robbery convictions as one strike.
II. Cruel and/or Unusual Punishment
Defendant contends his sentence of 25 years to life is cruel and/or unusual punishment. He argues his sentence is grossly disproportionate to his offense, which could be punishable as a misdemeanor. Defendant asserts his prior record is not serious because it consists almost entirely of misdemeanor convictions and he had only served one prison sentence. His strike convictions occurred 17 years prior to the current offense and the remoteness of the priors should lessen the weight attached to his criminal history. He compares his punishment for the current crime to crimes such as manslaughter and argues that his sentence is disproportionate. Defendant claims, even in the context of three strike offenders, his punishment is disproportionate because his current offense is not serious when compared to the serious or violent offenses of others. Finally, he argues his sentence is disproportionate when compared with punishment in other jurisdictions for the same crime. Defendant does not set forth an interjurisdictional comparison. As a fallback position, defendant argues his counsel was ineffective in failing to raise the issue of cruel and/or unusual punishment in the trial court.
The People contend defendant cannot raise the issue of cruel and/or unusual punishment on appeal because his counsel did not raise it below and because he failed to file a certificate of probable cause. In any event, the People claim defendant's sentence is not cruel and/or unusual.
Defendant did fail to enter this objection below and has, therefore, forfeited the issue. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) Because he has raised the issue alternatively as being deprived of the effective assistance of counsel, we shall address the merits.
Under the Eighth Amendment to the United States Constitution, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (U.S. Const., 8th Amend.) "The California Constitution prohibits 'cruel or unusual punishment.' (Cal. Const., art. I, § 17 ....) A punishment may violate the California Constitution 'although not cruel or unusual in its method, [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.' [Citation.]" (People v. Meeks (2004) 123 Cal.App.4th 695, 709.)
It has been repeatedly held by the United States Supreme Court that the imposition of a lengthy prison sentence under a recidivist statute on a repeat offender does not constitute cruel and unusual punishment. (Harmelin v. Michigan (1991) 501 U.S. 957; Rummel v. Estelle (1980) 445 U.S. 263.) The United States Supreme Court has deferred to state Legislatures to determine the appropriate length of prison sentences. (Id. at p. 274.) The legitimate state interest in safeguarding society from crime is promoted by imposing severe sentences on repeat offenders. (Id. at p. 284.)
Lengthy sentences have been upheld by the United States Supreme Court in cases involving relatively minor crimes. In Rummel the defendant was given a life sentence as a repeat offender after he was convicted of receiving $120.75 by false pretenses. His prior convictions were for credit card fraud worth $80 and for forging a $28.36 check. (Rummell v. Estelle, supra, 445 U.S. at pp. 265-266.) The Supreme Court found that society was warranted in segregating those who repeatedly commit felonies for an extended period of time. (Id. at pp. 284-285.)
The United States Supreme Court in Ewing v. California (2003) 538 U.S. 11, affirmed a 25-year-to-life sentence under the California three strikes law for a defendant who shoplifted golf clubs with an approximate value of $1,200. (Ewing v. California, supra, 538 U.S. at pp. 18-19.) The defendant had prior burglary and robbery convictions. The court noted, "[w]hen the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." (Ewing v. California, supra, 538 U.S. at p. 25.) In the companion case of Lockyer v. Andrade (2003) 538 U.S. 63, the defendant received two consecutive 25-year-to-life sentences under California's three strikes law for stealing $150 worth of videotapes. He had three prior convictions for first degree burglary. (Lockyer v. Andrade, supra, 538 U.S. at pp. 66-67.)
This defendant's criminal behavior began in his teenage years and continued on for almost three decades. Although there were periods of time when he did not offend, they did not last. Some of his offenses were very significant. Just prior to the current offense, he was convicted of felony evading a police officer. This is a particularly dangerous offense of significant criminality. He then did not show up for sentencing. He left the state, absconding for several months before apprehension. He has proved himself to be a person who reoffends and seeks to avoid punishment and apprehension. He is the type of criminal sought to be protected by the three strikes law. His sentence does not violate the United States Constitution prohibition against cruel and unusual punishment.
We are not bound by the federal district court cases defendant relies on to support his arguments. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.)
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Defendant's argument under the state Constitution also fails. Three types of analyses have been used by courts to determine whether a penalty offends the constitutional prohibition against cruel or unusual punishment: (1) an examination of the nature of the offense, and/or the offender, with particular regard to the degree of danger both present to society; (2) a comparison made of the challenged penalty with penalties imposed in the same jurisdiction for more serious crimes; and (3) a comparison of the challenged penalty to penalties imposed for the same offense in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-429.)
In addition to the already-stated circumstances specific to this defendant, he has demonstrated, by his repeated criminal acts that he has chosen not to conform to the norms of society as established by its criminal law. The trial court properly found the nature of the offenses and the offender posed a danger to society.
Defendant contends his sentence is disproportionate when compared with punishment in California for other, more serious crimes. It is illogical to compare defendant's punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes but are not repeat felons within the meaning of the three strikes law. Defendant is not being punished merely for the current crime, but also for his recidivist behavior. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) That defendant's current crime might be less serious than crimes that expose others to a three strike sentence is not determinative; it is his entire record that determines his sentence. We defer to the judgment of the Legislature to evaluate the gravity of different crimes. (Solem v. Helm (1983) 463 U.S. 277, 290.)
Defendant argues his punishment is disproportionate when compared with punishment in other jurisdictions for the same crime. "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.' [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
Defendant has failed to demonstrate that his punishment constitutes cruel and/or unusual punishment.
III. Refusal to Reduce the Felony to a Misdemeanor
Defendant was convicted of violating Penal Code section 1320.5. This conviction is punishable by imprisonment in the state prison or in the county jail for not more than one year; it is a wobbler offense. The decision whether to reduce a wobbler lies solely in the discretion of the court. (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977.) "This discretion ... is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice." (People v. Warner (1978) 20 Cal.3d 678, 683.) "'[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.'" (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977.)
In exercising its discretion, the trial court must weigh the various sentencing considerations commensurate with the individual circumstances. "[T]he fact a wobbler offense originated as a three strikes filing will not invariably or inevitably militate against reducing the charge to a misdemeanor. Nonetheless, the current offense cannot be considered in a vacuum; given the public safety considerations underlying the three strikes law, the record should reflect a thoughtful and conscientious assessment of all relevant factors including the defendant's criminal history. [Citations.] Furthermore, in evaluating the severity of a three strikes sentence relative to the gravity of the charge, the court must remain cognizant that the present violation of law only triggers the mandated penalty, which ultimately is the consequence of both that offense and the defendant's recidivist status." (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 979-980.)
Defendant contends that he was a man who panicked upon learning he might be facing a life sentence soon after his son was shot in the face. He failed to appear because he was scared and he wanted to get his children out of Fresno County. He was remorseful for failing to appear. He claims his criminal record is mitigated because most of his offenses were misdemeanors and his three strike convictions stemmed from one incident that occurred when he was 17 years old and followed the acquittal of law enforcement officers who beat Rodney King. There was no footage from the store showing that defendant participated in the violent acts directed at individuals in the store. He functioned at a mildly retarded level.
Defendant also asserts he has a history of drug and alcohol abuse that started after his brother was murdered. He was previously employed and has a family support system. He is already serving a sentence for the resisting arrest conviction. While acknowledging he deserves some punishment for his current offense, he argues sentencing him to a misdemeanor term accomplishes the general sentencing purposes. He also points out there were no victims of his failure to appear offense, thus, the considerations of protecting society and securing restitution for the victims do not apply. For all the above reasons, defendant contends the trial court abused its discretion in declining to reduce his conviction to a misdemeanor.
As previously set forth in the prior two arguments, defendant's prior offenses were significant and dangerous. He has a long line of criminal behavior beginning before the strike offenses and continuing until the current offense. His most recent offense, prior to the current offense, was for evading a police officer, a dangerous violation of the law. All the above factors demonstrate the trial court did not abuse its discretion when it declined to reduce defendant's current conviction from a felony to a misdemeanor.
DISPOSITION
The judgment is affirmed.
DETJEN, J. WE CONCUR: CORNELL, Acting P.J. DAWSON, J.