THE PEOPLE v. RONALD BRUNER

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. RONALD BRUNER, Defendant and Appellant.

B223741

Decided: February 28, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Ronald Bruner (appellant) appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1).1  The jury found that appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).   The trial court found that appellant had been convicted of a serious or violent felony pursuant to the Three Strikes Law and had suffered four prior prison sentences. (§§ 667, subd. (a)(1);  667, subds. (b)-(i), 1170.12, subds. (a)-(d);  667.5, subd. (b).)

The trial court sentenced appellant to a total term of 20 years in state prison.   The trial court imposed the upper term of four years for the assault, and doubled the term to eight years pursuant to the Three Strikes Law. The trial court imposed a consecutive term of three years for the great bodily injury enhancement.   The trial court imposed a consecutive term of five years pursuant to section 667, subdivision (a)(1) and one consecutive year for each of appellant's four prior prison sentences that were served for convictions brought and tried separately.

We appointed counsel to represent appellant on this appeal.   After examination of the record, counsel filed an “Opening Brief” acknowledging that they had been unable to find any arguable issues.   On November 12, 2010, we advised appellant that he had 30 days within which to personally submit any contention or issues that he wished us to consider.   On November 30, 2010, appellant submitted a supplemental brief.   In it, he articulates contentions based on self-defense, cruel and/or unusual punishment, due process, and ineffective assistance of counsel in relation to these and other issues.

The record shows that, on January 4, 2009, at approximately 11:40 p.m., Anthony Abreu (Abreu) called 911 and reported that a man had tried to rob him and had stabbed him.   The stabber was “right up the street,” and he was “some Black guy” on a white bicycle, wearing a gray sweater.   As he spoke with the 911 operator, Abreu saw the police arrive, and he told the operator that the police were “pulling up to the guy right now.”

Abreu testified that the stabber asked him for change and Abreu said he had none.   Abreu reached down to pick up the suspect's bicycle, and the suspect tried to check Abreu's pockets for change.   Abreu swatted the suspect's hand away, and the suspect swung at him.   Abreu swung back and knocked appellant down.   Appellant rose and reached into one of his pockets.   Appellant struck Abreu with a shiny object.   They exchanged punches and Abreu ultimately saw a slash on his sweatshirt and a puncture wound to his chest.   He also had a cut on his nose.   Appellant and Abreu began walking in opposite directions and Abreu called 911.

Abreu identified appellant as the person who stabbed him to Officer Andrew Deacon, who arrived at Abreu's side as appellant was being detained.   Paramedics took Abreu to a hospital where he received four to six staples on his chest.   His wound was two inches long and approximately three-quarters of an inch deep.   Abreu received two or three interior sutures and four staples to close the wound.

Abreu, who was in custody at the time of trial, said he would not point out appellant in court because he would be marked as a “snitch.”   Detective Walter Boyle (Detective Boyle) and the prosecutor interviewed Abreu after the preliminary hearing.   Abreu told the detective that appellant was the person who had stabbed him.

Officer Philip Choi identified appellant in court as the Black male with the white bicycle whom he arrested on the night in question.   Officer Choi's partner patted down appellant and found a knife that was later identified as the weapon used in Abreu's stabbing.

Detective Boyle obtained buccal swabs from appellant and Abreu.   A criminalist for the LAPD swabbed the handle and blade of the knife and forwarded the swabs for DNA analysis.   Analysis of the swabs showed that Abreu's DNA was a match for DNA found on the knife blade.

Appellant claims his counsel was ineffective because he did not recognize the fact of appellant's mental illness.   The record shows that at sentencing, appellant was hitting his head on the table and otherwise “acting up.”   The colloquy between the trial court and defense counsel indicates that the issue of appellant's competence had been previously addressed, but there is no record of the prior proceedings regarding this issue.   In any event, it appears the prior discussion was similar to the one at the sentencing hearing.   Defense counsel stated that he was “repeating [his] request to have Mr. Bruner declared incompetent pursuant to [section] 1368.”   Citing People v. Lewis (2008) 43 Cal.4th 415, 524, the trial court said that it had already noted that a defendant must exhibit more than “bizarre behavior, strange words, or pre-existing psychiatric condition” in order for a competency hearing to be compelled.   The trial court itself did not doubt appellant's competence, and the trial court is entitled to great deference in this regard because it is able to observe the defendant during trial.  (Id. at p. 525.)   Defense counsel acknowledged that the trial court had appointed a mental health professional to determine appellant's competence and that counsel could not provide a report stating that appellant was incompetent.   There is no indication in the record that appellant displayed bizarre behavior prior to the sentencing hearing.   Thus, the record as it stands does not support appellant's claim that his trial counsel failed to recognize his mental illness.   Defense counsel did request the trial court to declare appellant incompetent, but, “although a defense counsel's opinion that his client is incompetent is entitled to some weight, such an opinion alone does not compel the trial court to hold a competency hearing unless the court itself has expressed a doubt as to the defendant's competence.”  (Ibid.) The trial court in appellant's case clearly harbored no such doubt.

With respect to appellant's claims of self-defense, the record shows that the jury was instructed on self-defense, and it rejected appellant's claim that he stabbed the victim in self-defense.   Appellant attempts to insert an ineffective assistance of counsel claim in this argument, but the record shows that trial counsel persuaded the trial court to instruct the jury on self-defense over the People's objection.   Our review of the record leads us to conclude that appellant suffered no violation of his right to due process and a fair trial.

We reject appellant's claim that his sentence under the Three Strikes Law constitutes cruel and/or unusual punishment.   In Ewing v. California (2003) 538 U.S. 11, 23-24 (Ewing ) the United States Supreme Court confirmed that the “proportionality principles ․ distilled in Justice Kennedy's concurrence” in Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin ) guide application of the Eighth Amendment to challenges to recidivist sentencing.  (See Ewing, supra, at pp. 24-31.)   The Eighth Amendment does not require strict proportionality between crime and sentence, but only forbids extreme sentences that are grossly disproportionate to the crime.  (Id. at p. 23.)   Ewing recognized that California's three strikes scheme represents the Legislature's 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.”  (Id. at p. 25.)

The same gross proportionality test corresponds to the overarching test used in analyzing whether a sentence is cruel or unusual under the California Constitution, as stated in In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch ) [holding punishment to be cruel or unusual if so disproportionate to the crime that it “shocks the conscience and offends fundamental notions of human dignity”].)   The California Supreme Court has held in death penalty decisions subsequent to Lynch that “intercase” proportionality review is not required by the federal Constitution and “is not mandated under our state Constitution in order to ensure due process and equal protection, nor is it required in order to avoid the infliction of cruel or unusual punishment.”  (People v. Crittenden (1994) 9 Cal.4th 83, 156;  accord, People v. Bradford (1997) 15 Cal.4th 1229, 1384.)   The court has indicated that all that is required is “intracase” review, i.e., an evaluation of whether the sentence is “grossly disproportionate” to the offense.  (People v. Bradford, supra, at p. 1384.)

Under this gross disproportionality principle that must guide our analysis of appellant's challenge, we conclude that appellant's individual circumstances do not demonstrate that his punishment is cruel and unusual under the Lynch test or the federal test.   The particulars of appellant's criminal history, which was set out in the probation report and at sentencing, show that appellant received the three-strikes sentence not merely for the present offense but also for his recidivist behavior, which justifies the punishment imposed.   The probation report states that appellant suffered his first felony conviction in 1978, and his criminal activity continued unabated from that time.

Appellant's sentence is not an “extreme” sentence that is “ ‘grossly disproportionate to the crime,’ ” nor does it “shock[ ] the conscience and offend[ ] fundamental notions of human dignity.”  (Harmelin, supra, 501 U.S. at p. 1001;  Lynch, supra, 8 Cal.3d at p. 424.)   The sentence therefore does not run afoul of either the California Constitution or the Eighth Amendment strictures of the United States Constitution, and it does not constitute cruel and unusual punishment.

We have examined the entire record and are satisfied that appellant's attorneys have fully complied with their responsibilities and that no arguable issues exist.  (People v.Wende (1979) 25 Cal.3d 436, 441.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

FOOTNOTES

FOOTNOTE.  

FN1.  All further references to statutes are to the Penal Code unless stated otherwise..  FN1.  All further references to statutes are to the Penal Code unless stated otherwise.

THE COURT: * FN*.  BOREN, P. J., DOI TODD, J., ASHMANN-GERST, J.