PEOPLE v. REESE

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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Darnell REESE, Defendant and Appellant.

No. A068871.

Decided: February 21, 1996

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, San Francisco, for plaintiff and respondent. Rita L. Swenor, Sonoma, for defendant and appellant.

I. INTRODUCTION

Michael Darnell Reese appeals from a judgment of imprisonment for residential burglary, in which he was sentenced to 25 years to life as a “third strike” defendant under the legislative version of California's “Three Strikes” law (Pen.Code, § 667, subds. (b)–(i)).   We hold this sentence does not violate the federal or California constitutional prohibitions against cruel and unusual punishment.   We also conclude the trial court erred by omitting to impose certain mandatory sentence enhancements.

II. BACKGROUND

Reese was caught in the act of burglarizing a residence on the night of March 10, 1994, stealing a videocassette recorder and three screwdrivers.

At the time of the offense, Reese was 41 years old and had an extensive criminal history dating back to the age of nine.   He had 14 prior felony and misdemeanor convictions, for possession of drugs (1992 and 1979), driving under the influence (1992 and 1977), attempted robbery (1988), ex-felon in possession of a firearm (1985), unlawful sexual intercourse with a minor (1983), battery (1983), aggravated assault (1982 and 1977), possession of drugs for sale (1979), robbery (1972), burglary (1972), and possession of an illegal weapon and throwing rocks at a vehicle (1965).   He had been committed three times to the Department of Corrections and twice to the Youth Authority, and had multiple violations and revocations of probation and parole.   He had been a regular user of cocaine since the age of 22 and had never participated in a drug treatment program, having been rejected by Delancy Street in 1992 as too violent.   He had never held regular gainful employment.

Two of Reese's prior convictions were for serious felonies:  attempted robbery in 1988 and robbery in 1972.   This made him a third strike defendant under the Three Strikes law.  (Pen.Code, § 667, subd. (e)(2).)

After a nonjury trial, the court found Reese guilty of first degree burglary (Pen.Code, §§ 459, 460), and found he had two prior serious felony convictions for attempted robbery in 1988 and robbery in 1972 (Pen.Code, § 667) and had served two prior prison terms for attempted robbery in 1988 and unlawful sexual intercourse with a minor in 1983 (Pen.Code, § 667.5, subd. (b).)

Before sentencing, Reese filed a motion to “refuse effect” to the sentencing provisions of the Three Strikes law on the ground they constituted cruel and unusual punishment as applied to him.   The court denied the motion and imposed a sentence of 25 years to life.   The court did not impose any of the sentence enhancements.   The court minutes and the abstract of judgment state that “disposition” of the enhancements“is superseded by imposition of the indeterminate sentence of 25 years to life․”

III. DISCUSSION

A. Increased Punishment for Enhancements

 At the outset, we consider the People's request that we increase Reese's sentence by 11 years, consisting of two consecutive five-year enhancements for the prior serious felony convictions (Pen.Code, § 667, subd. (a)) and a consecutive one-year enhancement for one of the prior prison terms (for unlawful sexual intercourse with a minor) (Pen.Code, § 667.5, subd. (b)).

 The People correctly contend the trial court erred in omitting to impose these enhancements.   Reese responds, as the trial court apparently concluded, that a serious felony conviction cannot be used as both a “strike” and a five-year enhancer, but the published decisions have uniformly held otherwise (e.g., People v. Cartwright (1995) 39 Cal.App.4th 1123, 1137–1139, 46 Cal.Rptr.2d 351;  People v. Ramirez (1995) 33 Cal.App.4th 559, 39 Cal.Rptr.2d 374;  People v. Anderson (1995) 35 Cal.App.4th 587, 592–600, 41 Cal.Rptr.2d 474), and we believe those cases were correctly reasoned and decided.

Imposition of the enhancements was mandatory.   The court had no authority to strike the five-year enhancements (Pen.Code, § 1385, subd. (b)), and because the record indicates there were no mitigating sentencing factors there was no basis for striking the one-year enhancement (People v. Alexander (1992) 8 Cal.App.4th 602, 605, 10 Cal.Rptr.2d 450).   The court clearly erred in omitting to add 11 years to the sentence of 25 years to life.

 The People may raise this point on Reese's appeal, despite their omission to exercise their own right of appeal (see Pen.Code, § 1238, subd. (a)(10)), because the sentence of 25 years to life was unauthorized, and it is well settled that the People may challenge an unauthorized sentence on a defendant's appeal.  (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Irvin (1991) 230 Cal.App.3d 180, 190, 281 Cal.Rptr. 195;  People v. Benton (1979) 100 Cal.App.3d 92, 102, 161 Cal.Rptr. 12.) 1  “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.”  (People v. Scott, supra, 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   In that situation, a party's failure to appeal does not constitute a waiver of the right to assert the error on appeal by the other party.   In contrast, sentencing errors may be waived by failure to appeal in cases where sentences, “though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.”  (Ibid.)  Here, sentencing of Reese without the five-year and one-year enhancements could not lawfully be imposed under any circumstance, because the five-year enhancement was mandatory and no mitigating factors supported an exercise of discretion to strike the one-year enhancement.   This is not a case where a sentence otherwise permitted by law was imposed in a procedurally or factually flawed manner;  thus the absence of a People's appeal does not constitute a waiver of the error.

Consequently, we conclude the court erred in omitting to impose the mandatory sentence enhancements.   However, because it is possible the judge might have exercised his discretion to dismiss a prior “strike” allegation (People v. Casillas (1995) 40 Cal.App.4th 1506) had he properly perceived that imposition of the enhancements was mandatory, we shall remand the cause for resentencing, in order to afford the judge the opportunity to exercise his discretion to dismiss a strike allegation if so inclined.2

B. Cruel and Unusual Punishment

We proceed to Reese's claim that his sentence violates the federal and state constitutional prohibitions against cruel and unusual punishment.

 Under the federal constitution, the issue is whether the sentence is “grossly disproportionate” to the crime.  (Harmelin v. Michigan (1991) 501 U.S. 957, 1001, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836 (opn. of Kennedy, J.).) 3  Under the state constitution, the issue is whether the sentence “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, 105 Cal.Rptr. 217, 503 P.2d 921, fn. omitted.)   Pertinent factors under state law are the nature of the offense and offender, a comparison of the punishment with the penalty for more serious crimes in California, and a comparison of the punishment with the penalty for the same offense in other jurisdictions.  (Id. at pp. 425–427, 105 Cal.Rptr. 217, 503 P.2d 921.)

 The heart of Reese's argument is his claim that a proportionality review must ignore a defendant's criminal history and look only to the current offense in determining whether the sentence is cruel and unusual.   He relies on language in In re Lynch, supra, 8 Cal.3d at page 424, 105 Cal.Rptr. 217, 503 P.2d 921, proscribing disproportionality of a sentence “to the crime for which it is inflicted,” and in Solem v. Helm (1983) 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, requiring proportionality of a sentence “to the crime for which the defendant has been convicted.”

Reese misconstrues Lynch and Solem by taking too narrow a view of his offense.   Under California law—including the law of burglary, the Three Strikes law, and the sentence enhancement statutes—the crime he committed was not simply burglary, but burglary by a recidivist.   It is in that sense we review for disproportionality of the sentence to the crime.  (People v. Drew (1995) 40 Cal.App.4th 811, 819, 47 Cal.Rptr.2d 319 [defendant “is not subject to a life sentence under the ‘three strikes legislation merely on the basis of his current offense but on the basis of his recidivist behavior’ ”];  People v. Patton, supra, 40 Cal.App.4th at p. 422, 46 Cal.Rptr.2d 702 [“it is as a recidivist felon that Patton is thus being punished”];  People v. Cartwright, supra, 39 Cal.App.4th at p. 1136, 46 Cal.Rptr.2d 351 [defendant “ignores that the ‘three strikes' law punishes not only his current offenses, but also his recidivism”].)   An element of Lynch review is the nature of the offender, which encompasses recidivism.  (See People v. Weaver (1984) 161 Cal.App.3d 119, 127, 207 Cal.Rptr. 419.)

 We therefore consider whether a sentence of 36 years to life is disproportionate to this recidivist offense.   We conclude it is not.

 The burglary itself was not especially egregious;  the victim was not home at the time.   Any residential burglary, however, is a serious and dangerous crime.  (Ibid.)  Reese makes much of the fact that the victim lived in a drug-infested, high-crime area and had been burglarized previously, but we do not view this as a mitigating factor.   We do not measure the seriousness of crime according to the affluence of the victim.   Theft against the less fortunate is just as bad—perhaps even worse, as they are less able to bear the cost.

More importantly, Reese is quite an egregious recidivist.   He has lived a life of crime, petty and serious, nonviolent and violent,4 which has not abated as he has approached middle age.   His record of 14 felony and misdemeanor convictions is prodigious.   He has been incarcerated many times and has performed unsatisfactorily on parole and probation.   He is a long-time cocaine user who has never held regular gainful employment.   He has certainly reached that “point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies” which invokes the goal of a recidivist statute “to segregate that person from the rest of society for an extended period of time.”  (Rummel v. Estelle (1980) 445 U.S. 263, 284, 100 S.Ct. 1133, 1144, 63 L.Ed.2d 382;  cf. People v. Ingram, supra, 40 Cal.App.4th at pp. 1414–1415, 48 Cal.Rptr.2d 256 [30–year–old addict with lengthy juvenile and adult record];  People v. Cartwright, supra, 39 Cal.App.4th at p. 1136, 46 Cal.Rptr.2d 351 [44–year–old offender with extensive criminal history dating back to age 14].)   For this particular recidivist offender, who has proven himself to be utterly impervious to lesser punishment, a sentence of 36 years to life, while admittedly quite harsh, is not unconstitutionally cruel and unusual.

Reese's appellate counsel portrays him as a victim of “a community of young, African–American men who have been devastated by drug addition” and “an environment of low educational achievement, lack of vocational opportunities and the myriad social, health and economic dysfunctions which plague this community.”   All that may be true, but Reese is no longer young, and he is evidently beyond rehabilitation.   Reese's criminality may or may not be attributable to external causes beyond his control, but that is now beside the point.   His recidivism, whatever its cause, has now reached the point of justifying a lengthy period of isolation from society.  (Rummel v. Estelle, supra, 445 U.S. at p. 284, 100 S.Ct. at p. 1144.)

Reese also contends his punishment for this burglary is disproportionate as compared to penalties for more serious life-sentence crimes in California, such as murder, and as compared to penalties for the same habitual offender offense in other jurisdictions.  (In re Lynch, supra, 8 Cal.3d at pp. 426–427, 105 Cal.Rptr. 217, 503 P.2d 921.)

 On the first point, meaningful comparison for proportionality is not possible, since it is Reese's recidivism, not simply his commission of the burglary, that invokes the Three Strikes sentence.  (Accord, People v. Patton, supra, 40 Cal.App.4th at p. 426, 46 Cal.Rptr.2d 702;  see also People v. Ingram, supra, 40 Cal.App.4th at p. 1416, 48 Cal.Rptr.2d 256.)   A first-time murderer is not necessarily a more serious offender, for purposes of lengthy incarceration, than a career criminal who has committed multiple serious or violent felonies.  (See In re Lynch, supra, 8 Cal.3d at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921 [comparison with penalty in California for different offenses that “must be deemed more serious”].) 5

Our research on the second point reveals no disproportionality.   A survey of other states where habitual criminal statutes would encompass Reese's offense—a nighttime residential burglary in 1994 by a recidivist with prior convictions for attempted robbery in 1988 and robbery in 1972—indicates that California's Three Strikes law does not “exceed the punishments decreed for the offense in a significant number of those jurisdictions.”  (In re Lynch, supra, 8 Cal.3d at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921.)

Seven states would prescribe maximum punishments that are as harsh or harsher than in California:  life imprisonment with or without the possibility of parole.  (Ala.Code, §§ 13A–5–9, subd. (b)(2), 13A–7–6 [life or 15 to 99 years];  Del.Code Ann., tit. 11, § 4214, subd. (b) [life];  Idaho Code, § 19–2514 [5 years to life];  Miss.Code Ann., § 99–19–83 [life without possibility of parole];  Tex.Pen.Code Ann., §§ 12.42, subd. (d)(1), 30.02, subd. (c)(2) [life or 25 to 99 years];  Wash.Rev.Code Ann., § 9.92.090 [life];  W.Va.Code, § 61–11–18, subd. (c) [life].)

Six states would prescribe maximum punishments that are nearly as harsh as in California:  terms of 20, 25, 30 or 60 years.  (Ark.Code Ann., §§ 5–4–501, subd. (a)(3), 5–39–201, subd. (a)(2) [5 to 30 years];  Mo.Ann.Stat., §§ 558.016, subds. (3) & (7)(3), 569.170 [not to exceed 20 years];  Neb.Rev.Stat., § 29–2221, subd. (1) [10 to 60 years];  N.H.Stat.Ann., § 651.6, subds. I(c) & II(a) [fixed term between 10 and 30 years];  N.D.Cent.Code, §§ 12.1–32–09, subd. (1)(c) & (2)(b), 12.1–22–02, subd. (2)(a) [up to 20 years];  R.I.Gen.Laws, § 12–19–21 [not to exceed 25 years].)

Relatively few would impose penalties that are substantially less severe.  (Haw.Rev.Stat., § 706–606.5, subd. (1)(c)(iv) [5 years without possibility of parole];  Iowa Code Ann., §§ 902.8, 713.5, 713.6A [minimum of 3 years without possibility of parole];  Tenn.Code Ann., §§ 40–35–106, subds. (a)(1) & (c), 39–14–403, 40–35–112, subd. (b)(3) [6 to 10 years].) 6

We conclude that California's Three Strikes law as applied to Reese is well within the range of the punishment decreed for similar criminal conduct in other states.  (Accord, People v. Ingram, supra, 40 Cal.App.4th at p. 1416, 48 Cal.Rptr.2d 256;  People v. Patton, supra, 40 Cal.App.4th at p. 426, 46 Cal.Rptr.2d 702.)

C. Application of Three Strikes Law to Convictions Predating its Enactment

 Finally, Reese contends the court erred in imposing the third strike sentence because his 1972 robbery predated the enactment of Penal Code section 667.   However, in People v. Reed (1995) 33 Cal.App.4th 1608, 40 Cal.Rptr.2d 47, we held that the Three Strikes law applies to prior felony convictions predating its enactment.   Other courts have uniformly held likewise.  (E.g., People v. Sipe (1995) 36 Cal.App.4th 468, 484–489, 42 Cal.Rptr.2d 266;  People v. Anderson (1995) 35 Cal.App.4th 587, 600–601, 41 Cal.Rptr.2d 474.)   We believe those cases, like Reed, were correctly reasoned and decided.

IV. DISPOSITION

The judgment is reversed as to the sentence imposed and the cause is remanded for resentencing.   In all other respects the judgment of conviction is affirmed.

FOOTNOTES

1.   In 1986, subdivision (10) of Penal Code section 1238 was added to authorize a People's appeal from “the imposition of a sentence not authorized by law,” but there is no indication in the statute itself or its legislative history that it was intended to abrogate the rule permitting review on a defendant's appeal as well.

2.   Similar conclusions appear in People v. Ingram (1995) 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256, where on the defendant's appeal from a 27–years–to–life sentence the court recalculated the correct sentence as two consecutive 25–years–to–life terms on two counts plus 11 more years for two five-year enhancements and a one-year enhancement, and People v. Patton (1995) 40 Cal.App.4th 413, 46 Cal.Rptr.2d 702, where on the defendant's appeal from a 10–years–to–life sentence the court recalculated the correct sentence as 25 years to life plus a one-year enhancement.

3.   “While Harmelin did not contain a majority opinion with respect to the issue, two justices concluded the Eighth Amendment contains no proportionality guarantee [citation] and three other justices concluded the amendment forbids only those sentences which are ‘grossly disproportionate’ to the crime [citation].”  (People v. Patton, supra, 40 Cal.App.4th at p. 423, 46 Cal.Rptr.2d 702.)

4.   Reese claims he has not had a violent past except for his 1972 robbery conviction, but that is not so.   Since 1972, he has been convicted of aggravated assault (1977 and 1982), battery (1983), and attempted robbery (1988), all violent crimes.   Also, the probation report states that Delancy Street “turned him down” while he was incarcerated “because they felt that he was too violent of an offender.”

5.   Reese also attempts a comparison with more serious recidivist offenses that are “punished less severely” in California (In re Lynch, supra, 8 Cal.3d at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921).   Of the four statutes he cites, however, the first three impose the same maximum punishment, not less severe punishment, as for his third strike offense (Pen.Code, § 667.51, subd. (d) [15 years to life for child molestation with two prior sex offenses];  Pen.Code, § 667.71 [25 years to life for habitual sex offender] Pen.Code, § 667.75 [life for specified drug offense with two priors] ) and the third and fourth are not comparable because they impose punishment where there is only one prior conviction (Pen.Code, § 667.71;  § 667.72 [25 years for habitual child molester with “at least one” prior] ).

6.   In many states, Reese would be outside the scope of the habitual criminal statute.  (E.g., Ga.Code Ann., § 17–10–7, subd. (b) [term of life without possibility of parole restricted to violent felonies];  Ill.Ann.Stat., ch. 730, §§ 33B–1, 19–3 [life term restricted to felonies of class not including burglary];  Ind.Code, §§ 35–50–2–8.5, subd. (a), 35–50–2–2, subd. (b)(4) [term of life without possibility of parole restricted to burglaries resulting in serious bodily injury or with deadly weapon;  does not include attempts];  Kan.Stat.Ann., §§ 21–4504, 21–3715 [sentence multipliers restricted to crimes not including burglary];  Ore.Rev.Stat., § 161.725 [30 year maximum term restricted to dangerous defendants and felonies];  S.C.Code Ann., §§ 17–25–45, 16–1–60 [term of life without possibility of parole for violent crimes;  does not include attempts].)

KING, Associate Justice.

PETERSON, P.J., and HANING, J., concur.

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