Opinion
F078653
04-05-2022
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE STEPHENS, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF367464. Gary L. Paden, Judge.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Following a jury trial, defendant Robert Lee Stephens was convicted of one count of assault with a deadly weapon. In this appeal, defendant argues (1) the trial court imposed a sentence that violated the state's constitutional prohibition against cruel or unusual punishment, (2) the trial court abused its discretion by not granting a motion that would have stricken one of his prior convictions for purposes of sentencing, and (3) a remand is necessary for resentencing due to recent legislative changes. After considering all issues raised in this appeal, we find the sentence imposed did not constitute cruel or unusual punishment, and the trial court did not abuse its discretion when failing to strike one of defendant's prior convictions at the time of sentencing. However, a remand is now necessary to vacate the sentence imposed and resentence defendant consistent with legislative changes made to the relevant sentencing laws since he was last sentenced in this case.
PROCEDURAL SUMMARY
On July 25, 2018, defendant was charged with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The information further alleged defendant had two prior serious or violent convictions that qualified as "strikes" within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(i)), two prior serious felony convictions (§ 667, subd. (a)(1)), and served four prior prison terms (§ 667.5, subd. (b)). Defendant pled not guilty to count 1, and denied all other allegations contained in the information.
All statutory references are to the Penal Code unless otherwise specified.
Following a jury trial, defendant was found guilty of the allegations contained in count 1 of the information. On January 3, 2019, the court sentenced defendant to 25 years to life in prison on count 1. The court added to that sentence two 5-year terms related to the two prior serious felony convictions, and one year for a prior prison term.
There is confusion in the record about which prior prison term was used to enhance the sentence. The court did not identify which term was used for the enhancement or which term was stayed.
FACTUAL SUMMARY
Michael Claudino, an automotive mechanic, was working in his shop in Visalia, California, on June 29, 2018, when he heard someone yell, "where are you at, mother[******]." Claudino turned around and saw an individual on the other side of a car parked halfway into one of the shop bays. When Claudino began to walk in that direction, the individual left.
Almost immediately thereafter, Claudino heard the phone ring in the office. After answering the phone, Claudino looked out the office window and noticed the same individual, who was now in the driveway of the business, looking into a parked car. The individual had a "metal pipe" in one hand and a "butcher knife" or "meat cleaver" in the other hand. At trial, Claudino identified the individual as defendant.
Claudino testified defendant walked back into the shop toward the office. While Claudino was still on the phone, he heard defendant say again, "where you at mother[******]." The door was halfway closed, so Claudino looked around the opening and responded, "there's nobody here but me," and "[g]et the h[***] out of here." Claudino stated defendant then turned and walked away.
Claudino kept watching defendant as he walked into the middle of the street. Claudino saw defendant put the meat cleaver in his pocket, but noticed he still had the metal pipe in the other hand. After ending the phone call, Claudino called 911. Claudino testified he saw defendant, who was now standing in the middle of the street, "puff[] himself up" and walk back toward the automotive shop office. Claudino looked around for a gun he usually kept under the counter. When he could not find the gun, Claudino armed himself with a baseball bat.
According to Claudino, defendant came back into the shop and again started yelling profanities, apparently looking for someone. However, this time defendant had the meat cleaver raised above his head. Claudino noticed defendant was sweating profusely and concluded he might be on drugs. As defendant came closer to the office, he lunged toward Claudino with the meat cleaver. Claudino estimated defendant was approximately three feet away from him when he lunged forward. When Claudino showed him the bat, defendant lowered the meat cleaver down and backed away out the door.
During the entire interaction, Claudino remained on the phone with 911. Claudino followed defendant as he walked out to the sidewalk and the two had a verbal exchange. At some point during the verbal exchange, Claudino noticed a customer drive up to the business. Claudino placed himself between defendant and the customer, and watched defendant walk further down the street. A few minutes later the police arrived and stopped defendant.
Visalia Police Officer Cory Harris testified that on June 29, 2018, he responded to a call involving a male brandishing a knife. When he encountered defendant, Harris found a meat cleaver in defendant's right front pocket. During his testimony, Claudino identified the meat cleaver taken by Harris as the one defendant had in his hand on the date of the incident.
Harris testified defendant seemed "frantic" but was cooperative. Defendant stated he was looking for his wife, believing she was in the business with another man. Harris placed defendant under arrest after Claudino identified him as the person who had threatened him with a meat cleaver.
At trial, the prosecution rested and the defense presented no additional evidence, instead relying on the state of the evidence presented by the prosecution.
DISCUSSION
I. Defendant's Sentence Does Not Constitute Cruel or Unusual Punishment
Defendant contends a sentence of 36 years to life in prison for an assault committed by brandishing a knife while intoxicated and delusional violates the state constitutional prohibition against cruel or unusual punishment. To be precise, defendant was convicted of assault with a deadly weapon.
A. The Applicable Law
Whether a sentence constitutes cruel or unusual punishment is a question of law. (People v. Baker (2018) 20 Cal.App.5th 711, 721.) This court may thus conduct a de novo review to determine the constitutionality of the sentence imposed. (Ibid.)
"Cruel or unusual punishment may not be inflicted or excessive fines imposed." (Cal. Const., art. I, § 17.) Such a simple sentence without a simple resolution. Layer on top of this dilemma the impact of the Three Strikes law on the overall sentencing scheme. Recognizing the process of defining punishments for crimes is a distinctly legislative function; our Supreme Court in In re Lynch (1972) 8 Cal.3d 410, 423-424 stated the judiciary should not become involved in this process unless the assigned penalty is"' out of all proportion to the offense.'" The Supreme Court expanded on this language several years later in People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon) stating:
"the state must exercise its power to prescribe penalties within the limits of civilized standards and must treat its members with respect for their intrinsic worth as human beings: 'Punishment which is so excessive as to transgress those limits and deny that worth cannot be tolerated.' [Citation.] … [A] punishment may violate the California constitutional prohibition '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.' "
When considering whether a sentence is so disproportionate to the crime for which it is imposed, a court will examine" 'the nature of the offense and/or the offender with particular regard to the degree of danger both present to society.'" (Dillon, supra, 34 Cal.3d, at p. 479.) The first part of the analysis looks to the offense, not only in the abstract but also in terms of the totality of the circumstances leading up to the commission of the crime and its specific facts. (Ibid.) The second part of the analysis considers the offender, balancing factors such as the defendant's "age, prior criminality, personal characteristics, and state of mind," against the actual sentence imposed. (Ibid.) The goal is that each offender is treated as an individual who receives a punishment that fits the crime. (Ibid.)
Defendant addresses only the nature of the offense and the offender in his briefing. We will, therefore, focus on those discussions in this opinion.
1. The Nature of the Offense
When addressing the issue of the offense, the court in People v. Carmony (2005) 127 Cal.App.4th 1066, 1076 stated relevant constitutional provisions do not require" 'strict proportionality'" between a crime and the sentence imposed. Instead, the constitution" 'forbids only extreme sentences that are "grossly disproportionate" to the crime'" that was committed. (Ibid., citing Ewing v. California (2003) 538 U.S. 11, 23.)
Outside the realm of capital punishment, a successful attack on a sentence using a proportionality analysis is rare. (Ewing v. California, supra, 538 U.S. 11 at p. 21.) In fact, when reviewing California's Three Strikes law, the United States Supreme Court in Ewing v. California, reiterated its view that long prison sentences resulting from the application of a recidivism statute would not be viewed as per se invalid as lacking in proportionality. (Ibid.) The court recognized such recidivism statutes were "nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for" longer periods of time. (Ibid.) For this reason, great deference is granted to Legislatures who have broad authority for determining the appropriate punishments for crimes. (People v. Carmony, supra, 127 Cal.App.4th at p. 1076.) Lengthy sentences have been upheld by a variety of courts applying the Three Strikes law. (Id. at pp. 1076-1077.)
The crime for which defendant was found guilty in this matter carried a potential penalty of two, three, or four years in prison. (§ 245, subd. (a)(1).) However, because defendant was sentenced under California's Three Strikes law, he received a base sentence of 25 years to life because the new offense qualified as a third strike. (§ 1170.12, subd. (c)(2)(A)(ii).) To this base sentence the court added two 5-year enhancements for two prior serious felony convictions, and a one-year enhancement for one prior prison term. (§§ 667, subd. (a)(1), 667.5, subd. (b).) This resulted in a total sentence of 36 years to life.
Again, great deference is given to legislative determinations on sentencing, and a number of courts have upheld lengthy sentences imposed under the Three Strikes law. Upon our review of the holdings in Lynch, Dillon, and even Ewing, the nature of the enhancing allegations enumerated above, and the current offense of felony assault with a deadly weapon, we cannot conclude the sentence is unconstitutional using the proportionality test.
2. The Nature of the Offender
Defendant can only be successful here if we accept his lifelong and untreated issues with substance abuse and mental illness render this sentence unconstitutional because the ultimate sentence imposed" 'does not fit the criminal.'" (Dillon, supra, 34 Cal.3d at p. 479 [discussing In re Lynch, supra, 8 Cal.3d 410 at p. 437].) This analysis asks whether the sentence is grossly disproportionate when considering the defendant's age, prior criminality, personal characteristics, and state of mind. (Ibid.)
Defendant argues the sentence imposed here is grossly disproportionate because various underlying circumstances had an impact on his commission of the crime. Specifically, defendant points to his lifelong battle with addiction and mental illness that has never been dealt with or treated consistently during the entirety of his 47 years.
Defendant also downplays the seriousness of the offense committed by pointing out he backed away when asked by Claudino, or when he was shown the bat during their second interaction. Defendant believes these factors render a sentence of 36 years to life cruel or unusual punishment.
Since a recidivist statutory sentencing scheme was used to calculate this sentence, our review must also consider the entire context of defendant's criminal history. (People v. Sullivan (2007) 151 Cal.App.4th 524, 570.) In 1993, defendant was convicted of causing injury to a spouse, a misdemeanor (§ 273.5, subd. (a)), possession of a controlled substance without a prescription (Health & Saf. Code, § 11350), and the crime of escape, a felony (§ 4532, subd. (b)). In 1995, defendant was convicted of committing an armed robbery (§ 211), which qualified as his first strike. In 2002, defendant was found guilty of battery (§ 242).
Defendant's second strike came after a conviction in 2004 for corporal injury to a spouse, with the use of a deadly weapon (§§ 273.5, subd. (a), 12022, subd. (b)(1)). Thereafter, in 2010, defendant was found guilty of felony child endangerment (§ 273a, subd. (a)), felony reckless evading (§ 2800.2, subd. (a)), and driving while under the influence (Veh. Code, § 23152, subd. (b)). Finally, in 2014, defendant was found guilty of felony possession of methamphetamine (Health & Saf. Code, § 11377).
In People v. Cooper (1996) 43 Cal.App.4th 815, this court considered the constitutionality of a long sentence using a recidivist sentencing scheme as it applied to an individual with over a 20-year criminal record that included various convictions for grand and petty theft, parole violations, and a current conviction for being an ex-felon in possession of a firearm (§ 12021, subd. (a)). The court in Cooper concluded:
" 'Defendant is precisely the type of offender from whom society seeks protection by use of recidivist statutes. There is no indication defendant desires to reform or to change his criminal behavior. The record reflects an individual who preys on innocent people .… [¶] … [¶] Fundamental notions of human dignity are not offended by the prospect of exiling from
society those individuals who have proved themselves to be threats to the public safety and security. Defendant's sentence is not shocking or inhumane in light of the nature of the offense and the offender.'" (People v. Cooper, supra, 43 Cal.App.4th at p. 826.)
Without even addressing defendant's first conviction in 1993, defendant's record shows a pattern similar to the one described in Cooper. Defendant served prison terms following each conviction listed above, except for the first one in 1993, which resulted in probation. In between his numerous convictions, the record shows repeated violations of parole or probation, resulting in defendant's return to prison on many occasions.
We also cannot agree with defendant that his culpability is disproportionate to the sentence imposed. While we may be sympathetic to defendant's struggles with substance abuse and possible mental illness, those do not render the sentence unconstitutional. (See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1252, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192; People v. Castaneda (2011) 51 Cal.4th 1292.) The trial court considered then rejected these factors in mitigation. There is no real evidence in the record defendant ever attempted to address these issues in the past, yet he now states he "plans" to accept treatment for these issues in the future. Given his record, it was not unreasonable for the court to impose the sentence it did.
The jury found defendant committed an assault with a deadly weapon when he came into a place of business armed with a metal pipe and a meat cleaver, which he raised to head level as he approached the victim. Defendant downplayed the seriousness of these facts and the potential for great harm that existed. In fact, defendant displayed a lack of remorse or even acceptance of his actions during sentencing when he suggested the victim in this case, Claudino, fabricated the whole story.
We do not believe fundamental notions of human dignity are offended by the sentence imposed in this case. The sentence is neither shocking nor inhumane when considering the facts underlying the offense and defendant's history. We believe the sentence imposed here did not violate the state's constitutional prohibition against cruel or unusual punishment.
II. The Trial Court Did Not Abuse its Discretion by Denying Defendant's Romero Motion
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Defendant next contends the court abused its discretion when it denied his Romero motion. Defendant further believes the court erred when it did not find his intoxication and potential mental illness were mitigating factors in sentencing.
Defendant specifically asked the court to strike one of two strike convictions pursuant to Romero. Again, the two strike convictions consisted of a 1995 conviction for armed robbery (§ 211), and a 2004 conviction for corporal injury to a spouse with the use of a deadly weapon (§§ 273.5, subd. (a), 12022, subd. (b)(1)).
A. Applicable Law
Section 1385 empowers a trial court to "order an action to be dismissed" in furtherance of justice, on its own or the prosecution's motion. (§ 1385, subd. (a).) The Romero court reiterated the principal underlying section 1385, that a judge can not only dismiss an entire case, but can also dismiss a portion of a case, including allegations stating a defendant was previously convicted of a felony. (Romero, supra, 13 Cal.4th 497 at p. 508.) An order striking such an allegation should be based on a determination the interests of justice would be served by not imposing a statutorily enhanced sentence, because the defendant falls outside the spirit of the Three Strikes law. (Id. at pp. 529- 530.) When exercising this discretion, the court:
"must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17
Cal.4th 148, 161; accord, People v. Johnson (2015) 61 Cal.4th 674, 688- 689.)
When a court either fails or refuses to dismiss a prior strike conviction allegation during sentencing, the court's decision will be reviewed using an abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) The party appealing the sentence has the burden to show the decision was irrational or arbitrary; something no reasonable person could agree with. (Id. at pp. 376-377.) Because the Three Strikes law establishes a preference that prior strikes enhance a sentence, there is a "strong presumption … any sentence that conforms … is both rational and proper." (Id. at p. 378.) If a record is silent on the criteria a court considered when sentencing a defendant, but the" 'record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, '" the trial court's sentence should be affirmed, even if the reviewing court might have ruled differently. (Ibid.) Without a showing from the party appealing the sentence, the trial court is presumed to have considered legitimate criteria when making its discretionary decision to impose a particular sentence, and that decision will not be set aside on review. (Id. at pp. 376-377.)
This is the first case in the Carmony saga which was remanded to the trial court for resentencing. The case cited earlier in this opinion was the result of another round of appeals after that resentencing occurred.
B. Analysis
Just prior to sentencing, the court acknowledged having read all papers submitted on defendant's motion to strike the two convictions qualifying as strikes. The court stated:
"[I]n my mind [defendant] fits right under the guidelines of the three-strikes law. He took a meat cleaver to this man and but for the fact that the man had a bat-and his previous convictions are assaultive in nature. No, I think three strikes are exactly for people like [defendant]. I don't intend to strike any of his strikes, so that motion is denied."
Essentially the same arguments are raised here on appeal that were raised in the trial court in support of the Romero motion. Based on our review of the record, we cannot agree that the trial court's sentencing decision was irrational or arbitrary; something no reasonable person could agree with. (See People v. Carmony, supra, 33 Cal.4th, at pp. 376-377.)
Defendant's strike convictions occurred in 1995 and 2004. Both were assaultive in nature and involved the use of a weapon. In between these two convictions, defendant committed a battery in 2002. The current offense, which occurred in 2018, was not only assaultive in nature, but involved the use of a weapon, and therefore, was in the same category as the two offenses that qualified as strikes in this case. The gaps in the chronology of defendant's record are peppered with additional offenses and conduct that resulted in revocations of parole or probation.
We are cognizant of defendant's argument his lengthy struggles with substance abuse and mental health justify a reversal of the trial court's denial of his Romero motion. However, that issue was fully presented at the trial court level and part of the decision there. The court specifically considered those elements as mitigating factors and rejected them. We cannot conclude this decision was irrational or arbitrary on this record and find no abuse of discretion.
Based on the trial court's determination that the prior strike did not fall outside of the spirit of the Three Strikes law and the record in this case, we cannot conclude the refusal to dismiss a prior strike conviction was irrational or arbitrary. The trial court's decision on this issue did not constitute an abuse of discretion.
While the court recognizes defendant's sentence will be vacated due to legislative changes impacting the imposition of these same enhancements, we do not conclude the imposition of these enhancements were inappropriate under Romero at the time the original sentence was imposed.
III. This Case Must be Remanded for a Reconsideration of the Sentence
Defendant contends two recent legislative enactments require this case be remanded for a reconsideration of the sentence. The People acknowledge and concede this point. We agree that absent evidence to the contrary, the Legislature intended amendments to statutes that reduce the punishment for a particular crime to apply to all defendants whose judgments are not yet final on the amendments' operative date. (In re Estrada (1965) 63 Cal.2d 740, 744.) While a case is still in the process of being appealed, the judgment is not final, allowing a defendant to take advantage of a change in the law impacting a sentence. (People v. Babylon (1985) 39 Cal.3d 719, 722.)
A. Senate Bill No. 1393
Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) amended section 1385 to remove language prohibiting a court from striking prior felony enhancements available under section 667. This provision went into effect on January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).)
The amendments to sections 667 and 1385 apply retroactively to defendant. This matter must be remanded to allow the trial court to exercise its discretion on defendant's two prior serious felony enhancements, as intended by the changes made by Senate Bill 1393.
B. Senate Bill No. 136
Defendant also contends Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) applies retroactively to him and requires that any prior prison term enhancements be stricken. Again, the People concede, and we agree.
Senate Bill 136 amended section 667.5, subdivision (b) to limit prior prison term enhancements to prior terms that were served for a sexually violent offense as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) While other allegations had been stricken earlier from the information, there remained allegations addressing prior prison terms for child endangerment (§ 273a, subd. (a)) and evading an officer (Veh. Code, § 2800.2, subd. (a)) at the time of sentencing. Neither of these crimes involved sexually violent offenses. Consequently, neither prior prison term can be used to enhance defendant's sentence under section 667.5, subdivision (b).
DISPOSITION
The sentence imposed in this case did not constitute cruel or unusual punishment. Defendant's sentence is, however, vacated and this matter is remanded for resentencing. The trial court must reconsider whether to impose both five-year sentence enhancements for defendant's two prior serious felony convictions, following legislative changes made by Senate Bill 1393 to sections 667 and 1385. The court shall also strike the one-year enhancement for the prior prison term, as none of defendant's prior prison terms involve sexually violent offenses, as is now required by section 667.5, subdivision (b), as amended by Senate Bill 136. Following resentencing, the court shall forward new abstracts of judgment to the appropriate authorities. In all other respects, defendant's judgment is affirmed. --------- Notes: [*] Before Levy, Acting P. J., Poochigian, J. and Peña, J.