PEOPLE v. MOENIUS

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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. George Donald MOENIUS, Defendant and Appellant.

B090280.

Decided: January 24, 1996

Ivy K. Kessel, under appointment by the Court of Appeal, Encino, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Sanjay T. Kumar and B. Kathleen Blanchard, Deputy Attorneys General, for Plaintiff and Respondent.

George Donald Moenius was convicted by a jury of one count of possession of heroin.  (Health & Saf.Code, § 11350, subd. (a).)  The trial court found that he had been convicted of burglary (Pen.Code, § 459) in 1974 and 1991.   After determining that both burglary convictions were qualifying prior felony convictions under the legislative version of the three strikes law (Pen.Code, § 667, subds. (b)–(i)), the trial court sentenced him to a prison term of 25 years to life.   He appeals from the judgment.1

FACTS

On June 2, 1994, appellant bought some heroin, he went into a van with his brother, and, after preparing or having the heroin prepared for injection, appellant was apprehended by police while he was on top of a hypodermic syringe containing the heroin.   Inside the syringe was approximately .5 milliliter of a liquid containing heroin.

CONTENTIONS

Appellant contends (1) that there was insufficient evidence to establish that his 1974 burglary conviction was for residential burglary;  (2) that the trial court erred in determining that the 1974 burglary conviction was a qualifying prior felony conviction under the three strikes law, since the burglary was committed before the effective date of Penal Code section 1192.7;  (3) that the trial court erred in concluding it had no discretion to strike the finding of one of appellant's qualifying prior felony convictions;  and (4) that appellant's sentence constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and cruel or unusual punishment under article I, section 17, of the California Constitution.

DISCUSSION

1. Qualifying Status of the 1974 Burglary Conviction

Penal Code section 667, subdivision (d), provides in pertinent part:  “Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as:  [¶] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.   The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.   None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive:  [¶] (A) The suspension of imposition of judgment or sentence.  [¶] (B) The stay of execution of sentence.  [¶] (C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.  [¶] (D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison․”  (Italics added.)

Penal Code section 667, subdivision (h), provides:  “All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993.”   On that date, Penal Code section 1192.7, subdivision (c)(18), provided that “burglary of an inhabited dwelling house, or trailer coach as defined by the Vehicle Code, or inhabited portion of any other building” was a serious felony.2

 In deciding whether substantial evidence supports the trial court's finding that appellant's 1974 burglary conviction was a qualifying prior felony conviction under the three strikes law, we view the evidence in the light most favorable to the trial court's finding.  (See People v. Jones (1995) 37 Cal.App.4th 1312, 1315, 44 Cal.Rptr.2d 552.)

 The information alleged that appellant was convicted of the crime of residential burglary in 1974 in Los Angeles County Superior Court case No. A014636 and that the conviction was a qualifying prior felony conviction under the three strikes law.   The portion of the trial regarding the prior convictions was held on November 11, 1994.   To prove that appellant sustained a qualifying prior felony conviction in 1974, the prosecution introduced certified copies of the information in case No. A014636, the minute order of the hearing at which appellant pled guilty in that case, the minute order of the sentencing hearing, and a chronological index of the court proceedings in that case.   The information in case No. A014636 alleged that between March 23, 1974, and March 25, 1974, appellant committed burglary by “willfully enter[ing] the residence and building occupied by Agnes C. Marshall ․ with the intent then and there and therein unlawfully and feloniously to commit a felony and theft.”   The information contained only one count.   On April 25, 1974, appellant pled guilty in that case.   The minute order regarding his guilty plea stated that appellant pled guilty “TO VIOLATION OF SECTION[ ] 459 PENAL CODE, in the 2ND DEGREE IN COUNT # 1.”

On June 3, 1974, imposition of sentence was suspended, and appellant was granted probation for a period of three years on various conditions, including a condition that he spend 69 days in county jail, that he cooperate with the probation officer in a plan for psychiatric, psychological, or other treatment, and that he enter and remain in a long-term drug rehabilitation program.3  Long Beach Police Sergeant Robert Gillissie testified that he has known appellant and appellant's twin brother for more than 20 years, that on March 28, 1974, he arrested appellant for burglary, and that, as a result of the arrest, appellant was charged with residential burglary in case No. A014636.

Based on the evidence that the information alleged that appellant committed burglary of the “residence and building occupied by [the victim]” and that appellant pled guilty to second degree burglary and based on the lack of any evidence that the information was amended before appellant pled guilty, the trial court found that the 1974 conviction was for “residential burglary” and that it was a qualifying prior felony conviction under the three strikes law.4

In 1974, a burglary of an inhabited dwelling house or building committed during the day without being armed with a deadly weapon and without assaulting anyone was second degree burglary.  (Stats.1955, ch. 941, § 1, p. 1827.)   The allegation in the information charging appellant with the 1974 burglary that the burglary was of a residence and building occupied by the victim and the minute order indicating that appellant pled guilty to that charge as second degree burglary constituted substantial evidence that appellant's 1974 conviction was for “burglary of an inhabited dwelling house ․ or inhabited portion of any other building” (Pen.Code, § 1192.7, subd. (c)(18)).  (See People v. Guerrero (1988) 44 Cal.3d 343, 345, 355–356, 243 Cal.Rptr. 688, 748 P.2d 1150;  People v. Harrell (1989) 207 Cal.App.3d 1439, 1444–1446, 255 Cal.Rptr. 750.)   Since the information in case No. A014636 alleged that appellant burglarized the residence and building occupied by the victim and since the trial court in the present case found that appellant had pled guilty to burglary as alleged in that information, the trial court's finding that the 1974 conviction was a conviction for residential burglary was equivalent to a finding that the 1974 conviction was for the burglary of an inhabited dwelling house or the inhabited portion of any other building.  (See People v. Harrell, supra, 207 Cal.App.3d at pp. 1444–1446, 255 Cal.Rptr. 750;  People v. Deay (1987) 194 Cal.App.3d 280, 284, 239 Cal.Rptr. 406.)

 Penal Code section 1192.7 was added by the passage of the initiative measure Proposition 8 in the June 8, 1982, election.   Although appellant concedes that some prior convictions that occurred before the effective date of the three strikes law may qualify as strikes, he contends that his 1974 burglary conviction does not qualify as a strike because it was sustained before the effective date of Penal Code section 1192.7.   In support of this contention, appellant relies on our statement in People v. Green (1995) 36 Cal.App.4th 280, 42 Cal.Rptr.2d 249 that “[w]e ․ interpret the phrase in [Penal Code] section 667, subdivision (d)(1) that ‘[t]he determination [as to whether a prior offense qualifies as a “strike”] ․ shall be made upon the date of that conviction’ to mean that the court is presently required to look backward to see if, at the time of the conviction of the past offense, such past offense qualified as a serious or violent offense under [Penal Code] section 1192.7, subdivision (c) or [Penal Code] section 667.5, subdivision (c).”  (Id. at p. 283, 42 Cal.Rptr.2d 249.)   Appellant misreads our holding.

In People v. Green, supra, 36 Cal.App.4th at pages 282–283, 42 Cal.Rptr.2d 249, we held that a prior serious or violent felony conviction that occurred before the effective date of the three strikes law may qualify as a strike.   We observed that to interpret subdivision (d)(1) as precluding prior offenses that occurred before the effective date of the three strikes law from qualifying as strikes would “lead to an irrational result and frustrate the intent of the Legislature to initiate an immediate plan of severe punishment for repeat offenders.”  (People v. Green, supra, 36 Cal.App.4th at p. 283, 42 Cal.Rptr.2d 249.)   Because the prior burglary conviction in that case occurred in 1987, after the effective date of Penal Code section 1192.7, we were not presented with and did not decide the issue of whether a prior serious felony conviction sustained before the effective date of Penal Code section 1192.7 could constitute a strike under the three strikes law.

 In Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1306–1311, 44 Cal.Rptr.2d 144, modified 39 Cal.App.4th 583a, 583c, the Fifth Appellate District held that prior serious felony convictions sustained before the effective date of Penal Code section 1192.7 may qualify as strikes.   The court stated:  “The Three Strikes law ․ applies to felony convictions which were neither ‘serious' nor ‘violent’ felonies at the time of conviction, but which ․ fit the definition of a ‘serious felony’ or ‘violent felony’ on the relevant date [June 30, 1993].”  (Gonzales v. Superior Court, supra, 37 Cal.App.4th 1302, 44 Cal.Rptr.2d 144, mod. 39 Cal.App.4th at p. 583c, fn. omitted.) 5  The court explained that Penal Code section 667, subdivision (d)(1), does not require a contemporaneous characterization of a conviction as a serious or violent felony conviction.   Subdivision (d)(1) insures that unless at the initial sentencing the court determined that the crime was a misdemeanor, post-conviction events will not transform a felony into a misdemeanor.  (Gonzales v. Superior Court, supra, 37 Cal.App.4th at p. 1309, 44 Cal.Rptr.2d 144, mod. 39 Cal.App.4th at p. 583c;  accord, People v. Sipe (1995) 36 Cal.App.4th 468, 478, 42 Cal.Rptr.2d 266 cert. applied for December 1995, Supreme Ct. Dock. No. 95–7240;  People v. Anderson (1995) 35 Cal.App.4th 587, 600–601, 41 Cal.Rptr.2d 474.)   In People v. Turner (1995) 40 Cal.App.4th 733, 738–739, 47 Cal.Rptr.2d 42, petition for review filed January 5, 1996 (S051017), Division Five of this court followed Gonzales and held that a 1979 robbery conviction qualified as a prior strike under the three strikes law.6

Based on the reasoning of Gonzales, we hold that a prior serious felony conviction sustained before the effective date of Penal Code section 1192.7 may qualify as a strike.   Because substantial evidence supports the trial court's finding that appellant's 1974 burglary conviction was for the burglary of a building that was a residence and on June 30, 1993, burglary of an inhabited dwelling house or inhabited portion of any other building was a serious felony, the trial court properly determined that the 1974 conviction was a qualifying prior felony conviction under the three strikes law.

2. Discretion of Strike Finding of Qualifying Prior Felony Conviction

 In a five-page opinion, the trial court concluded it had no power to strike a finding of a qualifying prior felony conviction sua sponte under Penal Code section 1385 in the furtherance of justice.   The court stated, however, that if it had discretion to strike one of the findings of a qualifying prior felony conviction, the court would do so because the court “would find this to be harsh and [would find] that the interests of justice are not served by sending [appellant] to prison for life for having had a half a milliliter of liquid containing heroin․”

Appellant contends that, before passage of Proposition 184, the trial court had discretion under Penal Code section 1385, subdivision (a), to strike a finding of a qualifying prior felony conviction on its own motion.7  Appellant further contends that Proposition 184 removed any prohibition Penal Code section 667 placed on the court's ability to strike a qualifying prior felony conviction under Penal Code section 1385.   In People v. Peterson (1995) 40 Cal.App.4th 1479, 1487–1489, 48 Cal.Rptr.2d 318, petition for review filed January 22, 1996 (S051311), we rejected both contentions.   For the reasons stated in Peterson, we conclude the trial court had no discretion to strike a finding of a qualifying prior felony conviction on its own motion in the furtherance of justice.

3. Cruel and/or Unusual Punishment

In sentencing appellant to a prison term of 25 years to life, the trial court concluded that, in view of appellant's recidivism, the punishment as applied to appellant was neither cruel and unusual punishment proscribed by the Eighth Amendment to the United States Constitution nor cruel or unusual punishment, which is proscribed by article I, section 17, of the California Constitution.   Appellant's probation report indicates that appellant was 43 at the time of the most recent offense.   His criminal history began at the age of 18.   In 1969, appellant was convicted of possession of marijuana or hashish and was sentenced to state prison in Maryland for three years.   In 1972, appellant was convicted of selling or transporting marijuana and was granted three years of probation with a condition that he serve 100 days in county jail.   During that probationary period, in March 1974, appellant was arrested for burglary.   He was convicted of second degree burglary in that matter on April 25, 1974.8  On July 18, 1974, appellant's probation was revoked, and he was committed to the California Rehabilitation Center.   He was released on outpatient status in February 1975.

In December 1987, appellant was convicted of being under the influence of a controlled substance and was granted 12 months of probation with a condition that he serve 90 days in county jail.   On March 1, 1990, appellant was convicted of grand theft and was granted two years of probation.

Less than two months later, on April 16, 1990, appellant was arrested for burglary and being under the influence of a controlled substance.   On July 12, 1991, he was convicted in that matter of receiving stolen property and being under the influence of a controlled substance.   He was granted 36 months of probation with a condition that he serve 90 days in county jail.

On November 6, 1991, appellant was arrested for residential burglary.   On November 14, 1991, his probation was revoked and reinstated.   In December 1991, he was sentenced to two years in prison for the recent residential burglary.   In December 1992, he was released on parole.

On May 6, 1993, appellant was arrested for robbery.   On August 13, 1993, he was convicted of grand theft from the person in that matter.   He was granted three years of probation with a requirement that he serve six months in county jail.   He committed the current offense while on probation and parole.

 Appellant's contention that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment is unavailing.   In Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, the defendant was sentenced to life in prison under a recidivist statute because he had obtained $120.75 by false pretenses after having previously been convicted of fraudulently using a credit card to obtain $80 worth of goods or services and passing a forged check.   The court held that the sentence did not constitute cruel and unusual punishment.  (Id. at pp. 264–266, 284–285, 100 S.Ct. at pp. 1135–1135, 1144–1145.)   The court explained:  “[The] primary goals [of a recidivist statute] are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.   This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.   Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”  (Id. at pp. 284–285, 100 S.Ct. at pp. 1144–1145.)

In Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836, the defendant was sentenced to life without possibility of parole for possessing 672 grams of cocaine.   Two justices concluded that the Eighth Amendment does not require that a sentence for a noncapital crime be proportionate to the crime committed.  (Harmelin, supra, at pp. 985–994, 111 S.Ct. at pp. 2696–2701 [opn. of Scalia, J., joined by Rehnquist, C.J.].)   Three other justices concluded that the Eighth Amendment forbids only those sentences that are “ ‘grossly disproportionate’ ” to the crime.  (Harmelin, supra, at p. 1001, 111 S.Ct. at p. 2705 [opn. by Kennedy, J., joined by O'Connor, J., & Souter, J.].)   Justice Kennedy concluded that the defendant's sentence was not grossly disproportionate to his crime.  (Id. at p. 1005, 111 S.Ct. at p. 2707.)   In reaching that conclusion, Justice Kennedy stated:  “Petitioner's suggestion that his crime was nonviolent and victimless ․ is false․  To the contrary, petitioner's crime threatened to cause grave harm to society.   [¶] Quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime in at least three ways:  (1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood;  (2) A drug user may commit crime in order to obtain money to buy drugs;  and (3) A violent crime may occur as part of the drug business or culture.  [Citation.]”  (Id. at pp. 1002–1003, 111 S.Ct. at 2705–2706.)

In view of the Supreme Court's holdings in Rummel and Harmelin, we conclude that appellant's sentence is not grossly disproportionate to the current offense when viewed in light of his recidivist history and that the sentence does not constitute cruel and unusual punishment in violation of the Eighth Amendment.

 A punishment may violate the prohibition of article I, section 17 (formerly § 6), of the California Constitution against cruel or unusual punishment 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.”  (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921 fn. omitted.)   In Lynch the court noted three techniques that may be used to determine whether a punishment is cruel or unusual:  an examination of the nature of the offense and the offender;  a comparison of the challenged penalty with punishments prescribed in California for more serious offenses;  and a comparison of the challenged penalty with punishments prescribed for the same offense in other jurisdictions.  (Id. at pp. 425–427, 105 Cal.Rptr. 217.)   A determination whether a punishment is cruel or unusual may be based solely on an examination of the nature of the offense and the offender.  (People v. Weddle (1991) 1 Cal.App.4th 1190, 1198–1200, 2 Cal.Rptr.2d 714.)   A defendant who relies on either of the other two factors mentioned in Lynch has the burden of establishing that his punishment is greater than that imposed for more serious offenses in California or that similar offenses in other states do not carry punishments that are as severe.  (In re DeBeque (1989) 212 Cal.App.3d 241, 254–255, 260 Cal.Rptr. 441.)

Appellant relies on the first two factors described in Lynch in support of his contention that the sentence of 25 years to life is cruel or unusual as applied to him.   He asserts that the penalty is excessive because he has only one prior serious felony conviction that is not remote, the amount of heroin he possessed was “infinitesimal,” the current offense was not violent, and no victim suffered any loss as a result of his commission of the current offense.   He also asserts that the penalty in the present case is cruel or unusual because his sentence is greater than the statutory penalty for second degree murder.

 We do not find appellant's sentence to be cruel or unusual punishment.   For the reasons described in Harmelin v. Michigan, supra, 501 U.S. at pages 1002–1003, 111 S.Ct. at pages 2705–2706, possession of an illegal drug such as heroin is a serious offense.   Appellant received a sentence of 25 years to life under the three strikes law because he committed that offense after having previously been convicted of two residential burglaries.   “Residential burglary is an extremely serious crime presenting a high degree of danger to society.   Burglary laws are based primarily upon a recognition of ․ the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion․  [Citation.]”   (People v. Weaver (1984) 161 Cal.App.3d 119, 127, 207 Cal.Rptr. 419, internal quotation marks omitted.)

When appellant committed the current offense, he was on parole following service of his sentence for the recent residential burglary and was on probation for grand theft from the person.   By committing a new felony while he was on probation and parole, appellant showed no intention of abiding by the laws of this state.   In view of the numerous offenses appellant has committed, including the recent residential burglary and grand theft from the person, application of the three strikes law in this case does not shock the conscience or offend fundamental notions of human dignity.

A comparison of appellant's sentence with the sentence that would be imposed for second degree murder does not establish that the sentence imposed here is cruel or unusual punishment.   Appellant is being punished not only for the current offense but also for his recidivist behavior.   A defendant convicted of second degree murder who also had two prior “strikes” would most likely receive a sentence that was the same as or longer than appellant's sentence.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Subdivisions (b) through (i) of Penal Code section 667 were enacted as urgency legislation, effective March 7, 1994.   In the November 8, 1994, general election, Proposition 184, the three strikes initiative, was approved by the voters.   The three strikes initiative is codified as Penal Code section 1170.12, which contains provisions that are virtually identical to provisions of Penal Code section 667, subdivisions (b) through (i).   The present offense occurred after the effective date of the legislative version of the three strikes law but before passage of Proposition 184.

2.   Although Penal Code section 1192.7 was amended in 1993, those amendments did not affect subdivision (c)(18) of that section.

3.   The record does not reflect and appellant does not contend that the trial court declared the 1974 burglary to be a misdemeanor when it granted probation.

4.   The trial court stated:  “I don't need to know that the building indeed was occupied by an Agnes [Marshall].  [¶] I need to know that it was a residential burglary that was charged and that there was a plea to ․ a burglary in the second degree and a sentence pronounced thereon.  [¶] Now, I have no reason to believe that this was not an admission to a residential burglary.   There's nothing in the documents indicating that that part of it was excised․  [F]rom time to time we get amended informations.   Typically what we are talking about is amending the name, but rarely, once in a while[,] we also amend the body of an information to reflect that which is being admitted or we reflect ․ the difference between that which is being admitted and the charging allegations in the information somewhere.  [¶] And since there isn't that in any of these documents, I infer that what he admitted was a residential burglary.”

5.   The court noted that subdivision (h) of the three strikes law “freezes the list of qualifying felonies as of June 30, 1993.   [Citation.]”  (Gonzales v. Superior Court, supra, 37 Cal.App.4th 1302, 44 Cal.Rptr.2d 144, mod. 39 Cal.App.4th at p. 583c, fn. 1.)

6.   In Turner, the court stated:  “[W]e conclude section 667, subdivisions (b)-(i) are not limited to convictions that, when experienced by a felon, qualified as ‘serious' or ‘violent’ felonies.   The pertinent issue is whether the prior crime was a ‘serious' or ‘violent’ felony when the new offense for which the defendant is on trial was committed.”  (People v. Turner, supra, 40 Cal.App.4th at p. 739, 47 Cal.Rptr.2d 42, fn. omitted.)   As the Gonzales court noted, however, in view of the language in Penal Code section 667, subdivision (h), the pertinent issue is whether the prior crime was a serious or violent felony on June 30, 1993.  (Gonzales v. Superior Court, supra, 37 Cal.App.4th 1302, 44 Cal.Rptr.2d 144, mod. 39 Cal.App.4th at p. 583c.)

7.   Penal Code section 1385 provides:  “(a) The judge or magistrate 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.   The reasons for the dismissal must be set forth in an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.  [¶] (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”

8.   This was one of the prior residential burglary “strike” convictions.

NOTT, Associate Justice.

BOREN, P.J., and ZEBROWSKI, J., concur.