Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 1084392. Scott T. Steffen, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Michael Wells was convicted by jury trial of evading a peace officer (Veh. Code, § 2800.2) and driving with a suspended license (§ 14601.1, subd. (a)). The trial court sentenced defendant to 30 years to life in prison, including 25 years to life pursuant to the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus five years for prior prison terms served (Pen. Code, § 667.5, subd. (b)).
All statutory references are to the Vehicle Code unless otherwise noted.
On appeal, defendant contends (1) CALCRIM No. 2181 created a constitutionally impermissible mandatory presumption; (2) the trial court abused its discretion by refusing to dismiss defendant’s prior felony conviction strike allegations; (3) defendant’s sentence violates the prohibition against double jeopardy; and (4) defendant’s sentence constitutes cruel and/or unusual punishment. We affirm.
FACTS
On November 21, 2004, at about 11:30 p.m., California Highway Patrol (CHP) officers observed a white car stopped at a green traffic light. Several cars were waiting behind the white car. One car honked. Eventually the white car proceeded through the intersection. The officers followed and activated their vehicle’s siren and lights. The white car slowed, the driver leaned his head out, looked back and then accelerated. The officers pursued the white car, which reached speeds of more than 65 miles per hour through a residential area. The CHP vehicle’s siren malfunctioned, however, and the officers were forced to abort the pursuit. As they did, they observed the white car turn the wrong direction onto a one-way street.
Later, at around midnight, other CHP officers spotted the white car speeding on the freeway (Route 99). CHP vehicles pursued the white car for over 15 miles on the freeway at speeds of more than 100 miles per hour. At one point, the white car traveled on the right shoulder to pass a car in the slow lane. When the driver realized the shoulder was ending abruptly and there was a concrete railing along the roadside, he swerved hard back and almost lost control of the white car. The pursuit continued on the freeway until the white car exited the freeway, ran several stop signs at speeds of 90 to 100 miles per hour, swerved and ran into a ditch. Defendant got out of the driver’s side and ran about 200 yards, but the officers apprehended and subdued him with pepper spray.
Defendant’s wife, Linda, testified she was the owner of the white car. She did not want defendant driving the car because his license had been suspended. She told him not to drive her car and she threatened to call the police if he did. Defendant nevertheless had taken her car without permission on many occasions and she had called the police several times.
Defense Evidence
Defendant testified he drove Linda’s car without her permission that night. He said they were having marital problems and he did not want to go inside and argue with her. He explained he was stopped at the green light because someone was asking him for directions. As he was pulling over for the CHP officers, he realized Linda had warned him she would call the police if he took her car. When he thought about getting a third strike, he sped off.
Defendant testified he drove cautiously and safely during the pursuit so he would not hurt anyone or damage any property. He did not want to hurt anyone because he did not want to get his third strike. He slowed down for intersections, although he did drive through stop signs and speed on the freeway. The traffic was light. He eventually stopped because he ran out of gas. He fled from the officers because he did not want to get a third strike.
DISCUSSION
I. CALCRIM No. 2181
Defendant argues that CALCRIM No. 2181, which follows the language of section 2800.2, violates due process because it creates a constitutionally impermissible mandatory presumption to define an element of the felony.
The trial court instructed with CALCRIM No. 2181 as follows:
“The defendant is charged in Count I with evading a peace officer with wanton disregard for safety.
“To prove that the defendant is guilty of this crime, the People must prove that:
“One, a peace officer driving a motor vehicle was pursuing the defendant;
“Two, the defendant, who was also driving a motor vehicle willfully fled from or tried to elude the officer, intending to evade the officer;
“Three, during the pursuit, the defendant drove with willful or wanton disregard for the safety of persons or property;
“And, four, all of the following were true:
“A, there was at least one lighted red lamp visible from the front of the peace officer’s vehicle.
“B, the defendant either saw or reasonably should have seen the lamp.
“C, the peace officer’s vehicle was sounding a siren as reasonably necessary.
“D, the peace officer’s vehicle was distinctively marked; and,
“E, the peace officer was wearing a distinctive uniform.
“A person employed as a police officer by the California Highway Patrol is a peace officer.
“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else or gain any advantage.
“A person acts with wanton disregard for safety when, one, he or she is aware that his or her actions present a substantial and unjustifiable risk of harm. Two, he or she intentionally ignores that risk. The person does not, however, have to intend to cause damage.
“Driving with willful or wanton disregard for the safety of persons or property includes, but is not limited to, causing damage to property while driving or committing three or more violations that are each assigned a traffic violation point[. S]peeding; running a stop sign[;] running a red light; unsafe lane change; and driving on the shoulder of a highway[ a]re each assigned a traffic violation point. [Italics added.]
“A vehicle is distinctively marked if it has a red lamp and siren. It may also have additional markings or devices, in addition to the red lamp and siren, that identify it as a peace officer’s vehicle. The vehicle’s appearance must be such that a person would know or reasonably should know that it is a law enforcement vehicle.
“A distinctive uniform means clothing adopted by a law enforcement agency to identify or distinguish members of its force. The uniform does not have to be complete or of any particular level of formality. However, a badge, without more, is not enough.”
Defendant argues that the italicized language above creates an improper mandatory presumption. He raises the issue to preserve it for future federal review, recognizing that it has been decided against him by various Courts of Appeal, including this one. (See, e.g., People v. Mutuma (2006) 144 Cal.App.4th 635; People v. Laughlin (2006) 137 Cal.App.4th 1020; People v. Williams (2005) 130 Cal.App.4th 1440; People v. Pinkston (2003) 112 Cal.App.4th 387.) For the reasons explained in those cases, we reject defendant’s contention.
A Romero motion is a motion to dismiss one or more strike priors in the interest of justice under Penal Code section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
Defendant contends the trial court abused its discretion by refusing to dismiss five of his six prior strike convictions. We disagree.
The Three Strikes law “‘was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.) “‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (Ibid.) “Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so.” (Id. at p. 378.)
If the trial court does decide to depart from this sentencing norm, the court may dismiss one or more prior felony conviction allegations. (Pen. Code, § 1385; Romero, supra, 13 Cal.4th at pp. 529-530.) The court “must consider whether, in light of the nature and circumstances of [the defendant’s] 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.) But, because the Three Strikes law creates a strong presumption that any sentence conforming to its sentencing norm is both rational and proper, only in limited circumstances will a trial court abuse its discretion by deciding not to dismiss a prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
A defendant has the right to seek review of a trial court’s decision not to dismiss a prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 376.) The trial court’s decision is reviewed under the abuse of discretion standard, and the burden is on the defendant to show that the court’s decision was irrational or arbitrary. (Ibid.) “[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 p. 377.) “For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.]” (Id. at p. 378.)
The Supreme Court has stressed, however, that such cases are extraordinary. “Where the record is silent [citation], or ‘[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’ [citation]. Because the circumstances must be ‘extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case -- where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ -- the failure to strike would constitute an abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)
In this case, defense counsel argued that defendant fell outside the spirit of the Three Strikes law because his current offense was minor, the sentence would still be lengthy if five of the priors were dismissed, the strike priors were remote, defendant’s crimes were related to his drug addiction, and defendant had family and community support. The trial court decided to take a few days to consider the matter. At the sentencing hearing (which ultimately took place almost one month later), the trial court denied the Romero motion, as follows:
“[THE COURT:] “I have reviewed the papers, I heard arguments, I’ve considered all of the foregoing, and I’m going to deny the Romero Motion. And the reason is I’m troubled by -- the argument that these [four prior first degree burglaries] were one series of acts that occurred a long time ago has some appeal. On the other hand, there are six strikes here. And I think striking six strikes is just something I can’t do in good [conscience].
“[DEFENSE COUNSEL]: Judge, I need to correct the court. I was only asking the court to strike five.
“THE COURT: Well, right. Still, there were six and striking that many is just something I -- I don’t feel I can do. [¶] In addition, though they’re not strikes, [defendant] has had convictions since then in: 1991, 1998, 1999, and 2003. And, that is just a summary, those are the key points in my thought process, so that is my ruling.”
In light of the trial court’s analysis and the record before us, we cannot say the court abused its discretion by refusing to dismiss defendant’s prior strike convictions. The court sought to make a thoughtful and well-reasoned decision. It considered the papers and arguments, and although it saw some merit in the argument that four of defendant’s first degree burglaries should be considered as a remote, single series of acts, the court reasonably concluded that striking five prior convictions was not appropriate.
Defendant interprets the trial court’s statement to mean that the court based its decision solely on the number of defendant’s prior convictions, “to the exclusion of all other factors.” He claims the record fails to demonstrate that the court considered the nature of the current offense, the nature of the prior convictions, or the option of a partial strike sentence. On the contrary, the court stated it had considered the papers and arguments. Furthermore, the court was not required to state its reasons for declining to exercise its discretion under Penal Code section 1385. (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) We conclude defendant’s extensive criminal history and the particularly dangerous circumstances of his current offense support the trial court’s findings. Defendant’s case is not an extraordinary one, and the trial court’s decision not to dismiss defendant’s prior convictions did not exceed the bounds of reason or rationality. There was no abuse of discretion.
III. Double Jeopardy
Citing Duran v. Castro (E.D.Cal. 2002) 227 F.Supp.2d 1121, defendant argues his Three Strikes sentence violated the constitutional prohibition against double jeopardy because it was based almost entirely on his past offenses rather than his current offense.
It is true that when a sentence relies solely on prior offenses rather than the current offense, it punishes the defendant for the prior offenses a second time and thereby violates the prohibition against double jeopardy. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1075, citing Ex parte Lange (1874) 85 U.S. 163, 173; Witte v. United States (1995) 515 U.S. 389, 395-396; and Duran v. Castro, supra, 227 F.Supp.2d at p. 1130.) Because the double jeopardy clause prohibits successive punishment for the same offense, its policy “circumscribes the relevance of recidivism. (Duran v. Castro, supra, 227 F.Supp.2d at p. 1131, citing Monge v. California (1998) 524 U.S. 721, 729.) To the extent the ‘punishment greatly exceeds that warranted by the aggravated offense, it begins to look very much as if the offender is actually being punished again for his prior offenses.’ (Duran v. Castro, supra, 2[2]7 F.Supp.2d at p. 1130.)” (People v. Carmony, supra, at p. 1080.)
But the Supreme Court has also recognized that the Constitution permits the enhancement of a sentence on the basis of a defendant’s past crimes; a defendant’s past criminal record has always been one of the primary considerations in setting a sentence for a current crime. (Ewing v. California (2003) 538 U.S. 11, 25; see also Witte v. United States, supra, 515 U.S. at p. 397.) The formalizing of that practice in recidivism statutes like the Three Strikes law does not implicate the double jeopardy clause “because the enhanced punishment imposed for the later offense ‘is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,’ but instead as ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’ [Citations.]” (Witte v. United States, supra, at p. 400.) In Monge v. California, supra, 524 U.S. 721, the Supreme Court explained: “Historically, we have found double jeopardy protections inapplicable to sentencing proceedings, [citation], because the determinations at issue do not place a defendant in jeopardy for an ‘offense,’ [citation]. Nor have sentence enhancements been construed as additional punishment for the previous offense; rather, they act to increase a sentence ‘because of the manner in which [the defendant] committed the crime of conviction.’ [Citations.] An enhanced sentence imposed on a persistent offender thus ‘is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes’ but as ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’ [Citations.]” (Id. at p. 728.)
Here, defendant was not punished solely for his past offenses; his current conduct warranted punishment of its own. Defendant’s conduct was, as he concedes, reckless and dangerous, and not merely passive or regulatory. His high-speed flight from the officers on public streets and a state freeway put the public and law enforcement at great risk of injury or death. This was a serious crime and there is no reason to conclude defendant’s sentence was imposed solely because of his past crimes.
Consistent with the authorities mentioned above and with our earlier decisions in People v. White Eagle (1996) 48 Cal.App.4th 1511 and People v. Eribarne (2004) 124 Cal.App.4th 1463, we conclude defendant’s sentence did not implicate the double jeopardy clause. Defendant is not being punished twice for his prior convictions, but instead is receiving a greater punishment for his latest offense because of his status as a recidivist offender.
IV. Cruel and/or Unusual Punishment
Defendant also asserts that his sentence constitutes cruel and/or unusual punishment. We conclude this argument is without merit.
A. California Standard
A sentence is unconstitutional according to California law 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.” (In re Lynch (1972) 8 Cal.3d 410, 424.) In order to challenge a sentence as cruel and unusual the defendant has a considerable burden to overcome. (People v. Wingo (1975) 14 Cal.3d 169, 174.) The doctrine of separation of powers is firmly settled in the law of California, and the determination of sentencing is a legislative function. (Ibid.) The validity of enactments will not be questioned “‘unless their unconstitutionality clearly, positively, and unmistakably appears.’” (Ibid.)
To determine whether a sentence is disproportionate, courts should (1) consider the nature of the offense and the offender, (2) compare the punishment with punishments imposed for more serious crimes in California, and (3) compare the punishment with punishment imposed for the same crime in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.) Applying these factors, we conclude defendant’s punishment is not cruel or unusual under California law because it is not disproportionate to his crimes.
1. Nature of the Offense and the Offender
Defendant argues that although his conduct was reckless and dangerous, it did not involve a willful desire to harm another, nor did it result in injury to another. He points out that the maximum penalty for his offense, which is not inherently dangerous to human life, is only three years in prison. He asserts that when we take these factors into account, we should conclude the harshness of his sentence far outweighs the gravity of his offense.
Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances, including the defendant’s motive, involvement, the manner of commission of the crimes, the consequences of his acts, and his individual characteristics such as age, prior criminality, and state of mind. (People v. Lucero (2000)23 Cal.4th 692, 739.)
Here, defendant’s substantial criminal background makes him “precisely the type of offender from whom society seeks protection by use of recidivist statutes.” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1415, overruled on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.) Defendant has engaged in criminal activity for over 20 years. His convictions include four counts of first degree burglary in 1983; first degree burglary in 1986; fraudulent narcotics trafficking in 1988; first degree burglary in 1991; evading an officer in 1998; petty theft with a prior in 1999; and assault with a deadly weapon in 2003. Defendant served prison terms for all but two of those convictions. “There is no indication defendant desires to reform or to change his criminal behavior.” (People v. Ingram, supra, 40 Cal.App.4th at p. 1415.) “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.” (Id. at p. 1416.) In light of the nature of the offense and the offender, defendant’s sentence does not shock the conscience or offend human dignity.
We note that defendant’s Three Strikes sentence has been imposed and upheld in cases involving less dangerous theft offenses. (See, e.g., Ewing v. California, supra, 538 U.S. at pp. 30-31 [theft of $1,200 worth of golf clubs]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [theft of $150 worth of video tapes]; People v. Romero (2002) 99 Cal.App.4th 1418, 1424, 1433 [magazine theft].)
2. Punishment for More Serious Crimes in California
Defendant contends his sentence is disproportionate because only first degree murderers would receive a harsher sentence and because his sentence is substantially longer than sentences imposed for crimes such as second degree murder, rape and child molestation.
First, for purposes of determining the proportionality of defendant’s sentence, we do not compare his sentence to the sentence imposed on a first-time offender. “[I]t is proper to punish a repeat offender more severely than a first-time offender. The proper comparison would be to a recidivist killer, whose punishment would be the same as defendant’s.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) Second, defendant’s punishment is based on his status as a third strike offender. “[T]he three strikes law punishes not only his current offenses, but also his recidivism. California statutes imposing more severe punishment on habitual criminals have long withstood constitutional challenge.” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.)
3. Punishment for Similar Offenses in Other Jurisdictions
Defendant argues his sentence is unconstitutional because most other jurisdictions apply recidivist laws more leniently. California’s Three Strikes law, however, is consistent with the national trend of applying increased sentences to repeat offenders. (People v. Ingram, supra, 40 Cal.App.4th at p. 1416.) While California’s punishment scheme is among the most extreme, this does not mean it is unconstitutional. (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) “This state’s constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code.” (Ibid.) “It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons ‘advance[s] the goals of [its] criminal justice system in any substantial way.’” (Ewing v. California, supra, 538 U.S. at p. 28.) Therefore, defendant’s claim is unsupported.
B. Federal Standard
Defendant also contends his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The United States Supreme Court has held that a sentence violates the Eighth Amendment proscription against cruel and unusual punishment if a sentence is grossly disproportionate. (Lockyer v. Andrade, supra, 538 U.S. at p. 71.) Only an extraordinary case will constitute a constitutional violation. (Id. at p. 77). 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, overruled on another ground in People v. Deloza (1998) 18 Cal.4th 585, 593-595), and “the federal Constitution affords no greater protection than the state Constitution” (People v. Martinez, supra, 71 Cal.App.4th at p. 1510). 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, supra, 538 U.S. at pp. 76-77; Ewing v. California, supra, 538 U.S. at pp. 30-31; Rummel v. Estelle (1980) 445 U.S. 263, 266 [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 did not violate federal Constitution].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Hill, J.