PEOPLE v. PATTON

Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Tecostanelle Andre PATTON, Defendant and Appellant.

No. D021949.

Decided: November 14, 1995

Christopher Blake, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and David Delgado–Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

After a non-bifurcated trial, the jury found Tecostanelle Patton guilty of possession of cocaine base (Health & Saf.Code, § 11350, subd. (a)) and found true he had served a prior prison term (Pen.Code,2 § 667.5, subd. (b)) and had previously been convicted of two serious felonies, to wit, burglaries of inhabited dwellings (§ 459), within the meaning of sections 667, subdivisions (d) and (e), which constitutes a life prior under the newly enacted “three strikes” law.3

At the time of sentencing, the trial court denied probation and committed Patton to a determinate term of one year under section 667.5, subdivision (b) to be served before an indeterminate term of nine years to life under section 667, subdivision (e)(2)(A)(i).   In doing so, the court specifically found the punishment under section 667, subdivision (e)(2)(A)(ii), which would require Patton to serve a sentence of 25 years to life, to be cruel and unusual in this particular case.

Patton appeals, contending the trial court erred in failing to instruct the jury sua sponte under CALJIC No. 17.25 (Prior Conviction of Felony—Jury Duty to Find) and in sentencing him under the new three strikes law.   Patton specifically argues the court erred in failing to strike one or both of his prior felony convictions and in ordering him to serve 80 percent of the one-year enhancement imposed for his prison prior.   He also asserts the limitations on credits dictated by the three strikes law in subdivision (c)(5) violate his right to equal protection of the laws.4

We conclude any instructional error was harmless on this record and, as to Patton, the imposition of the appropriate three strikes law indeterminate “25 years to life” term is not cruel or unusual punishment under either the Federal or State Constitutions.   We also reaffirm our earlier holdings in People v. Brady (1995) 34 Cal.App.4th 65, 40 Cal.Rptr.2d 207 and People v. McCain (1995) 36 Cal.App.4th 817, 42 Cal.Rptr.2d 779.   Accordingly, we affirm Patton's conviction and true findings and modify his sentence to reflect the proper three strikes term under section 667, subdivision (e)(2)(A)(ii).

DISCUSSION 5

I

CALJIC No. 17.25 **

II

Cruel and/or Unusual Punishment

At the time of sentencing, the trial court entertained Patton's motion to dismiss or strike his prior felony convictions based on the ground the mandated 25–years to life term under the three strikes law was cruel and/or unusual punishment under both the federal and state constitutions as applied in this case.   After hearing argument,10 reviewing videotaped legislative sessions concerning the new three strikes law,11 and examining the facts of this case and of Patton's criminal history in light of the factors in In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 and People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, the court found application of the mandated term under the three strikes law to Patton was cruel and unusual punishment.   It specifically cited Patton's age (23 years), the fact his priors did not “arouse violence,” and the facts he had no other prior convictions as an adult and had never been violent in the commission of any of his crimes as reasons for its decision.   The court then imposed a term under section 667, subdivision (e)(2)(A)(i) for nine years to life by tripling the upper term for Patton's current offense and added one year for his prison prior for a total ten-years to life term.

On appeal, Patton contends his life sentence constitutes cruel and/or unusual punishment.   While he appreciates the trial court found the mandated 25–years to life term for his third strike cruel and unusual punishment, Patton faults the court for failing to strike one or both of his prior convictions in the interests of justice, arguing such authority to strike exists regardless of any statutory limitations on such power.12  In effect, he claims the court improperly remedied the constitutional violation it found based on his total term, which is still a life sentence.   We need not address Patton's ultimate claim of wrong remedy, however, since we approach his challenge as one claiming the total sentence, together with the limitation on credits of section 667, subdivision (c)(5), is disproportionate to his culpability.   After careful review we find no constitutional violation in the imposition of a 25–year to life sentence in this case.   Because such term is mandated by the clear language of the three strikes law, we also find the imposition of less than that term to be an unauthorized

he objected to it being read without the court explaining the implications of a finding under section 667, subdivision (d) and (e), which would subject Patton to a life term under the new three strikes law.   The court overruled the objection on grounds such explanations would “go contrary to the instructions that they're not to consider penalty or punishment.”   Counsel formally stated for the record that he objected to a reading of CALJIC No. 17.26 “as taking away the prerogative of the jury to make an informed, intelligent decision regarding this [life] allegation.”   The court thereafter instructed the jury as discussed and counsel argued the matter to the jury.

In closing, the prosecutor stressed the difference between the jury's duty to find Patton guilty or not guilty on the current offense and its duty to make findings on the priors.   He also told the jury it needed to determine whether Patton was guilty of the current crime before considering the documentary evidence presented on his priors.   Defense counsel stressed that Patton was only charged with one simple possession of cocaine charge, and the jury should only look at the evidence concerning his priors if it found him guilty of that charge.   Then, in an argument bordering on jury nullification,9 defense counsel pleaded with the jury not to apply the new “Three Strikes and You're Out” legislation by finding true Patton had suffered his earlier “one strike” and “two strikes” convictions.

Before the prosecution proceeded with its final argument, the court admonished the jurors as follows:

“Ladies and gentlemen of the jury, in light of the remarks that have been made in the last argument to you the court feels that in the interest of fairness to both sides that I must make certain statements to you.  [¶] As I indicated to you at the outset, the statements that the attorneys make to you are not evidence and not to be considered as evidence.  [¶] I also have told you that you must apply the law that I state to you to the facts as you determine them and in this way to arrive at your verdict.   You should remember that you must accept and follow the law as I state it to you whether or not you agree with the law and if anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law you must follow my instructions.  [¶] You are not to consider in any way in your deliberations ․ the subject of penalty or punishment and that subject must not in any way affect your verdict.   And I'm directing you to disregard any mention of the “Three Strikes and You're Out” law.   Strike it from your minds.   Any mention is not appropriate for you to consider.”

At the end of the prosecutor's argument and court's final instructions, the court reviewed the verdict forms with the jury, specifically emphasizing there was only one crime charged in this case and that only if that verdict form were filled in with “guilty” would the jury then go to the other verdict forms for the prior allegations.   The jury returned verdicts finding Patton guilty of the current crime and finding true all prior allegations.

 On appeal, Patton contends the trial court prejudicially erred by failing to sua sponte instruct the jury with CALJIC No. 17.25 (Prior Conviction of Felony—Jury Duty to Find), which is to be given rather than CALJIC No. 17.26 when there is no bifurcation of the trial for jury determination of the truth of prior conviction allegations.  (See § 1158.)   While Patton is correct that the court should have read CALJIC No. 17.25 instead of the modified CALJIC No. 17.26 it did read, such was not prejudicial in light of this record.

Patton's major point of contention is that the jury was not specifically cautioned in the modified CALJIC No. 17.26 instruction that they were not to consider the allegations of his prior convictions “or evidence thereof, if any, as proof that [he] committed the crimes charged in the information.”   Such admonishment, however, was properly included in CALJIC No. 17.18, which instructed the jury on what it must find before determining the allegations on Patton's prison priors were true.   Such instruction was read right before the one at issue, which included all other matters necessary under the omitted instruction.   Moreover, both counsel and court stressed the difference between the two types of crimes, current and past, and the jurors' duty to first determine the issue regarding Patton's present offense before considering any evidence on the prior allegations.   Any error was thus harmless.  (See People v. Wims (1995) 10 Cal.4th 293, 314–315, 41 Cal.Rptr.2d 241, 895 P.2d 77.)

Further, it can be surmised from this record that defense counsel's tactical purpose in not bifurcating the trial of the priors was solely to undermine the effect of the three strikes legislation.   That it did not work does not support a finding of instructional error.   Counsel clearly distinguished the evidence concerning each choice the jury had to make during his closing argument and only objected to the instructions given on the priors because they did not explain the ramifications of the new law to the jury.

II

Cruel and/or Unusual Punishment

At the time of sentencing, the trial court entertained Patton's motion to dismiss or strike his prior felony convictions based on the ground the mandated 25–years to life term under the three strikes law was cruel and/or unusual punishment under both the federal and state constitutions as applied in this case.   After hearing argument,10 reviewing videotaped legislative sessions concerning the new three strikes law,11 and examining the facts of this case and of Patton's criminal history in light of the factors in In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 and People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, the court found application of the mandated term under the three strikes law to Patton was cruel and unusual punishment.   It specifically cited Patton's age (23 years), the fact his priors did not “arouse violence,” and the facts he had no other prior convictions as an adult and had never been violent in the commission of any of his crimes as reasons for its decision.   The court then imposed a term under section 667, subdivision (e)(2)(A)(i) for nine years to life by tripling the upper term for Patton's current offense and added one year for his prison prior for a total ten-years to life term.

On appeal, Patton contends his life sentence constitutes cruel and/or unusual punishment.   While he appreciates the trial court found the mandated 25–years to life term for his third strike cruel and unusual punishment, Patton faults the court for failing to strike one or both of his prior convictions in the interests of justice, arguing such sentence and modify the judgment as required.13

Before turning to the reasoning for our conclusion, we address a preliminary question which the parties raise as to the proper standard of our review.

A. Scope of Review:

 Patton acknowledges we have previously held the 25–year to life minimum term in the three strikes law was not cruel and unusual punishment both in the abstract and as applied to a particular defendant, but claims we failed to identify our standard of review of the trial court's decision such term constituted cruel and unusual punishment as to that defendant.14  He contends the proper standard is simply whether the trial court abused its discretion in ruling the statutory punishment under the three strikes law, which is a sentencing decision, was cruel and unusual as applied to him.  (See Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, 305, 10 Cal.Rptr.2d 371;  People v. Blessing (1979) 94 Cal.App.3d 835, 838, 155 Cal.Rptr. 780.)   He argues that because the trial court here made such finding based on careful evaluation of the facts of his current offense and in light of his background, we must give deference to that decision absent a showing a miscarriage of justice would result.  (See People v. Price (1991) 1 Cal.4th 324, 405, 3 Cal.Rptr.2d 106, 821 P.2d 610;  Brown v. Newby (1940) 39 Cal.App.2d 615, 618, 103 P.2d 1018.)

Citing People v. Weddle (1991) 1 Cal.App.4th 1190, 1197, 2 Cal.Rptr.2d 714, which in turn cites People v. Leigh (1985) 168 Cal.App.3d 217, 223, 214 Cal.Rptr. 6115 and 3 Witkin & Epstein, Cal.Criminal Law (2nd ed. 1989) Punishment for Crime, section 1336, pages 1559–1560, the People posit we can review the trial court's determination anew based on the facts found below and determine for ourselves whether Patton's 25–years to life term constitutes cruel and unusual punishment.   We agree.

Similar to the reasoning and conclusion in People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961, which determined the appellate standard for review of the trial court's decision on a constitutional challenge in a search and seizure case was de novo, so too do we conclude the review of the constitutional challenge in this case is a question of law subject to our independent judgment.   For, in such a review “it is ‘the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard․’  [Citation.]”  (Id. at p. 597, 174 Cal.Rptr. 867, 629 P.2d 961.)   Thus we accept the trial court's resolution of conflicting facts in the testimony if supported by substantial evidence(People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621), and draw our conclusion of law from the undisputed and supported facts.  (People v. Leyba, supra, 29 Cal.3d at p. 597, 174 Cal.Rptr. 867, 629 P.2d 961.)

With this standard in mind, we review the uncontested facts in this case in light of the applicable law concerning cruel and unusual punishment.

B. Analysis:

 Relying basically on In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 92116 and People v. Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697,17 and to a lesser extent on Solem v. Helm (1983) 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637,18 Patton contends imposition of a 25–year to life sentence for his “minor” nonviolent controlled substance violation is “grossly disproportionate and shocks the conscience” thereby violating the state and federal constitutional prohibitions against cruel and/or unusual punishment.19  Patton does not challenge the general facial constitutionality of the three strikes statutory scheme, but rather asserts its application to him is unconstitutional in light of the facts found by the trial court regarding his nature as a youthful, nonviolent repeat offender.  (See People v. Dillon, supra, 34 Cal.3d at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   He argued at sentencing that because a defendant convicted of “heinous crimes such as homicide, rape, kidnap for robbery or ransom, child molest, mayhem, and torture[ ]” would actually have an earlier parole date than he faces under the three strikes law for merely possessing cocaine, his sentence is so severe as to constitute cruel and unusual punishment.

Patton, however, fails to appreciate the punishment under scrutiny here is the result of more than one crime.   His current offense is a felony conviction, which coupled with two prior serious felony convictions, triggers a 25–year to life term under the new three strikes legislation.  (§ 667, subd. (e)(2)(A)(ii).)   It is as a recidivist felon that Patton is thus being punished.   From our independent review of the record in light of the applicable federal and state law, we disagree with Patton's contentions and conclude imposition of such term is not cruel and/or unusual in this case.

We preface our review with the fact recidivism in the commission of multiple felonies poses a manifest danger to society, which has traditionally justified the imposition of longer sentences for subsequent offenses.  (See People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406 [recidivist statute for violent sex offenders], overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165.)   So-called habitual criminal statutes which substantially increase the severity of punishment for those who have demonstrated a propensity to repeatedly commit criminal offenses serious enough to be punished as felonies are legion and long-established.  (See In re Rosencrantz (1928) 205 Cal. 534, 535–536, 539–540, 271 P. 902 [upholding imposition of life sentence without possibility of parole for defendant convicted of fraudulently uttering a check without sufficient funds after three prior felony convictions];  People v. Weaver (1984) 161 Cal.App.3d 119, 125–126, 207 Cal.Rptr. 419 [discussing California's long history of upholding habitual offender statutes].)   In discussing such recidivist statutes the Supreme Court of the United States has stated:

“The purpose of a recidivist statute ․ [is] 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.”  (Rummel v. Estelle (1980) 445 U.S. 263, 284–285, 100 S.Ct. 1133, 1144–1145, 63 L.Ed.2d 382.)

1.) Federal Argument:

Contrary to Patton's reliance on Solem, supra, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637, to show an Eighth Amendment violation, the latest United States Supreme Court case of Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836, which addresses the question whether that constitutional amendment includes a proportionality guarantee in noncapital cases, greatly undermines the holding in Solem.   While Harmelin did not contain a majority opinion with respect to the issue, two Justices concluded the Eighth Amendment contains no proportionality guarantee (id. at p. 965, 111 S.Ct. at p. 2686 (opn. of Scalia, J., joined by Rehnquist, C.J.)) and three other justices concluded the amendment forbids only those sentences which are “grossly disproportionate” to the crime (id. at p. 1001, 111 S.Ct. at p. 2705 (opn. of Kennedy, J., joined by O'Connor, J., & Souter, J.)).   Even those justices recognizing a guarantee of proportionality review stressed that, outside the context of capital punishment, successful challenges to a particular sentence are “exceedingly rare” because of the “relative lack of objective standards concerning terms of imprisonment.”  (Ibid.)  The defendant in Harmelin was given a life sentence without possibility of parole for possessing a large quantity (672 grams) of cocaine.

Earlier the United States Supreme Court had addressed the constitutionality of a Texas recidivist statute requiring life imprisonment upon conviction of a third felony in Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382.   Over the course of nine years Rummel had been convicted of fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36 and obtaining $120.75 by false pretenses.  (Id. at pp. 265–266, 100 S.Ct. at pp. 1134–1135.)   In response to Rummel's argument life imprisonment was “grossly disproportionate” to the three felonies committed, the Court concluded the mandatory life sentence did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments.  (Id. at p. 285, 100 S.Ct. at p. 1145.)

Comparing the magnitude of Patton's current offense and prior felony convictions to the magnitude of the felonies at issue in Rummel in light of Harmelin 's holding only extreme sentences that are “grossly disproportionate” to the crime (or crimes, as in the case of a recidivist) do not pass constitutional muster (Harmelin v. Michigan, supra, 501 U.S. at p. 1001, 111 S.Ct. at p. 2705), a claim that Patton's life imprisonment would constitute cruel and unusual punishment within the meaning of the Eighth Amendment must necessarily fail.

2.) California Argument:

 We next review California's separate constitutional prohibition against “cruel or unusual punishment.”  (Cal. Const., art. I, § 17;  Raven v. Deukmejian (1990) 52 Cal.3d 336, 355, 276 Cal.Rptr. 326, 801 P.2d 1077.)   In so doing, we are mindful that the power to define crimes and prescribe punishment is a legislative function and we may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate that constitutional prohibition.  (People v. Dillon, supra, 34 Cal.3d at pp. 477–478, 194 Cal.Rptr. 390, 668 P.2d 697;  In re Lynch, supra, 8 Cal.3d at pp. 423–424, 105 Cal.Rptr. 217, 503 P.2d 921.)   Ultimately, the test whether a specific punishment is cruel or unusual is whether it is “ ‘out of all proportion to the offense ․’ [citation] so as to shock the conscience and offend fundamental notions of human dignity.”  (In re DeBeque (1989) 212 Cal.App.3d 241, 249, 260 Cal.Rptr. 441 quoting Robinson v. California (1962) 370 U.S. 660, 676, 82 S.Ct. 1417, 1425, 8 L.Ed.2d 758 and citing In re Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.)

 As we noted in In re DeBeque, supra, 212 Cal.App.3d at page 249, 260 Cal.Rptr. 441, the analysis developed in In re Lynch and People v. Dillon merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each criteria depends on the facts of the specific case.   Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e., the nature of the offense and/or offender (see, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482–488, 194 Cal.Rptr. 390, 668 P.2d 697;  People v. Weddle, supra, 1 Cal.App.4th at pp. 1198–1200, 2 Cal.Rptr.2d 714;  People v. Young (1992) 11 Cal.App.4th 1299, 1308–1311, 15 Cal.Rptr.2d 30), the defendant has the burden of establishing his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe.  (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254–255, 260 Cal.Rptr. 441.)   Successful challenges to proportionality are an “exquisite rarity.”  (People v. Weddle, supra, 1 Cal.App.4th at p. 1196, 2 Cal.Rptr.2d 714.)

Here, Patton was convicted of possession of cocaine base, clearly a felony 20 under California law.   While possession of 1.82 grams of rock cocaine for personal use admittedly is not a serious crime when compared to many other possible offenses, as earlier noted, Patton is not subject to a life sentence under the three strikes legislation solely on the basis of his current offense.   The jury also found true he had previously committed two residential burglaries, which are serious prior felony convictions having tremendous potential for injury or death.21  Thus, contrary to the trial court's finding that Patton's youthfulness and relatively minor current offense and past nonviolent offenses should mitigate against imposition of the mandated 25–years to life term under the three strikes law, we find the record supports such imposition.

The probation report shows Patton had a continuous criminal history for at least 9 years.   At age 19 he was convicted of residential burglary in case No. CR 109027 while on probation for crimes under the juvenile court's jurisdiction.22  Less than five months later he was convicted of two more residential burglaries in case No. CR 118335 and sent to prison.23  He was arrested on this instant case 12 days after being released from prison on parole.   As the probation officer noted:

“[Patton] was under juvenile probation supervision between 1985 and 1989.   The defendant's file reflects the defendant continuously committed crimes throughout these years.   The defendant was placed out of his home, into two ranch placements and a 24 hour school placement.   The defendant was able to function in a structured setting, however, once released, [he] resumed his prior pattern of criminality.  [¶] As an adult, the defendant was placed on probation in Case [No.] CR 109027, after a prison sentence was suspended.   The defendant violated probation, and his sentence was executed, sending the defendant to prison for four years.  [¶] ․ [¶] The defendant was on parole ․ at the time he committed the Instant Offense․  It could be surmised that Mr. Patton's adjustment to both probation and parole has been dismal.”

Patton, unlike the youthful 17–year–old first-time offender in Dillon, was 23 years old at the time of sentencing and had already suffered two prior serious felony convictions and served a four-year prison term.   The circumstances of his current offense reveal he, unlike the youth in Dillon, was fully culpable for its commission; 24  the drugs were found in Patton's pocket while he sat with an open alcoholic container between his legs in the backseat of a car.   By committing this new felony while on parole, Patton has shown he has no intention of abiding by the laws of the State of California.   And, although Patton does not have a violent criminal history and his current crime involved no violence, because the three strikes law targets not only those repeat felons with prior violent felony convictions but also those, such as Patton, with prior serious felony convictions, we cannot say its application in this case shocks the conscience and offends fundamental notions of human dignity.

A comparison of Patton's punishment for his current crime with the punishment for other crimes in California is simply inapposite since it is his recidivism in combination with his current crime that places him under the three strikes law.   As earlier mentioned, imposition of greatly enhanced terms for recidivists in California has long been upheld.  (See In re Rosencrantz, supra, 205 Cal. at pp. 535–536, 539–540, 271 P. 902;  People v. Weaver, supra, 161 Cal.App.3d at pp. 125–126, 207 Cal.Rptr. 419.)   Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals (ibid.), it is illogical to compare Patton's punishment for his “offense”, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but are not qualified repeat felons.   Such other offenders would likely receive similar or longer sentences under the new law if such were applicable to them because of recidivist conduct.   Therefore, any argument concerning differing parole eligibility dates has no merit.

While Patton did not rely on the third Lynch prong or present any evidence regarding sentences imposed for similar offenses or sentencing schemes in other jurisdictions, a review of statutes from other states demonstrating similar punishment for habitual criminals with that imposed by the three strikes legislation, provides support for concluding a 25–year to life term as applied to Patton is not cruel and/or unusual punishment.  (See Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382;  cf. Bordenkircher v. Hayes (1978) 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 [imposition of life imprisonment under recidivist statute for uttering a forged instrument in the amount of $88.30 upheld against vindictive prosecution claim].)

Moreover, it may be inferred from the passage of Proposition 184 that well over two-thirds of California voters do not consider it cruel or unusual punishment for a recidivist offender convicted of a nonviolent, nonserious felony with prior convictions for violent or serious felonies, including burglary of an inhabited dwelling, to receive a 25–year or more to life sentence.25  Thus the fact Patton will receive such a sentence under the new statute can hardly be said to shock the conscience or offend concepts of human dignity.26  As applied in this case, section 667, subdivision (e)(2)(A)(ii) does not violate the constitutional prohibitions against cruel and/or unusual punishment.

III

Prison Credits ***

DISPOSITION

We affirm Patton's conviction and the true findings made on his alleged priors.   We modify his sentence to reflect the proper three strikes term under section 667, subdivision (e)(2)(A)(ii).  (§ 1260.)   The trial court is directed to prepare an amended abstract of judgment to reflect the correct sentence of 25 years to life plus a one-year consecutive term for the prison prior, and to forward a certified copy to the Department of Corrections.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   A three strikes law was enacted as emergency legislation on March 7, 1994, and is set forth in section 667, subdivisions (b) through (i).  (Stats.1994, ch. 12.)   Proposition 184 approved by the California voters on November 8, 1994, added section 1170.12 to the Penal Code, which contains almost identical provisions to those found in section 667, subdivisions (b) through (i).   Because Patton was charged with a crime which occurred after the enactment of section 667, subdivision (b) through (i), but before the passage of Proposition 184, our discussion of the three strikes law necessarily refers to section 667, subdivisions (b) through (i).   Our review of the two statutory schemes, however, has revealed no significant differences between them regarding the provisions at issue here.

4.   Patton's attempt to raise an ineffective assistance of counsel claim on direct appeal fails.   No separate arguments in support of such claim are stated in his appellate brief.   Those raised in Patton's habeas corpus petition (In re Patton on Habeas Corpus (Sept. 13, 1995) No. D023184) have been duly considered and summarily denied.

5.   Since Patton does not challenge the sufficiency of the evidence, we omit the traditional statement of facts.

FOOTNOTE.   See footnote *, ante.

10.   During argument, the prosecutor discussed various lesser terms the court hypothetically might impose within its discretion should it find the punishment mandated cruel and unusual as applied to Patton, explaining the three strikes law required a court to set a minimum term for a third strike defendant which would determine when that defendant would be eligible for parole.   The prosecutor, however, objected to the imposition of any term less than that mandated by Patton's third strike in this case, noting it had only informed the court of other sentencing options via discussion and was not advocating them as an alternative sentence.

11.   The court opined the tapes revealed the Legislature intended a trial court to have the discretion to strike or otherwise remedy a constitutional violation in regard to any particular sentence imposed under the new law.

12.   Patton maintains there is little doubt the trial court had the power to strike one or both of his priors under section 1385.   While he recognizes this court has determined that issue against him in People v. Superior Court (Romero) (1995) 35 Cal.App.4th 1313, 37 Cal.Rptr.2d 364, which is now pending review before the California Supreme Court (S045097, review granted April 13, 1995), he argues such decision is wrong and asks that we take judicial notice of the defense briefing presented in that case and revisit the issue once again.We decline to do so.   The trial court did not strike either prior in this case and presumably, the Supreme Court will decide whether the power of trial courts to strike qualifying priors on their own motion is precluded by the language of section 1385, subdivision (b) which prevents trial courts from striking “․ any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”   Further, our conclusion the statutory penalty is not cruel and/or unusual as applied to Patton in this case renders any reexamination of that issue unnecessary.tion [667, subdivisions (d) and (e) ].  [¶] As I said, that allegation as pled in the information is listed in special instruction No. 1.   And if you find the defendant guilty of count one, that is, guilty of the possession of cocaine base, you must then determine the truth of this allegation.  [¶] The People have the burden of proving the truth of this allegation.   If you have a reasonable doubt as to whether such alleged prior convictions are true you must find them to be not true.  [¶] Now, if you find the defendant not guilty of the charge in count one, you'll need go no further as to any allegations.”

9.   Before the prosecutor's final closing statement, the court excused the jury and advised defense counsel he had almost asked the jurors to violate their duty to follow the law.   The court then cautioned the prosecutor about making any statements in light of defense counsel's remarks and to leave the matter to the instruction the jury would receive about not considering penalty or punishment in their deliberations.   The prosecutor's strong objections to defense counsel's “absolutely reprehensible” closing statement convinced the court to further admonish the jury on the matter and to also consider holding defense counsel in contempt.   The court eventually reprimanded defense counsel for his conduct.

10.   During argument, the prosecutor discussed various lesser terms the court hypothetically might impose within its discretion should it find the punishment mandated cruel and unusual as applied to Patton, explaining the three strikes law required a court to set a minimum term for a third strike defendant which would determine when that defendant would be eligible for parole.   The prosecutor, however, objected to the imposition of any term less than that mandated by Patton's third strike in this case, noting it had only informed the court of other sentencing options via discussion and was not advocating them as an alternative sentence.

11.   The court opined the tapes revealed the Legislature intended a trial court to have the discretion to strike or otherwise remedy a constitutional violation in regard to any particular sentence imposed under the new law.

13.   Patton's assertion the People should be estopped from asserting the statutorily mandated maximum term of 25–years to life is not cruel and/or unusual punishment when applied to him because they have not sought appellate review in this case fails.   The People clearly objected to less than the mandated term at sentencing and have continued to do so in their respondent's brief on appeal, arguing both that the trial court does not have the power to strike priors on its own and the three strikes law is not cruel and/or unusual punishment as either a law or as imposed upon Patton.   As noted above, we need not reach the issue of the court's power to strike.Moreover, contrary to Patton's claim of implied waiver by the People concerning the actual term imposed here by the trial court should we find against him on the constitutional issue, i.e., that we leave the nine-years to life term in place, it is well established that whenever a defendant lays his cause on our doorstep he subjects himself to a thorough review of the proceedings below and an unauthorized sentence must be vacated and a proper term imposed whenever the mistake is brought to our attention.   (People v. Hickey (1980) 109 Cal.App.3d 426, 435, 167 Cal.Rptr. 256.)   The People have pointed out that the life term imposed was unauthorized because section 667 requires the imposition of the greater of three possible sentences for those recidivists, like Patton, who have two qualifying prior felony convictions and commit a third felony.  (§ 667, subd. (e)(2)(A)(ii).)   We agree and modify the sentence to reflect the correct term.  (§ 1260.)

14.   Patton again cites to Romero, supra, 35 Cal.App.4th 1313, 37 Cal.Rptr.2d 364, which is pending review.

15.   Patton is mistaken that Leigh holds only the trial court is in a position to review the proportionality of a sentence under Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 and decide whether it is constitutionally valid in light of the facts.   The narrow issue for review in Leigh was whether a trial judge could act on its own to implement the procedures detailed in Dillon.  (People v. Leigh, supra, 168 Cal.App.3d at p. 223, 214 Cal.Rptr. 61.)   The court in Leigh reversed the trial judge, who ruled “any such balancing test must be carried out by the appellate courts,” and held a trial court had such “power and responsibility” in the first instance to make that sentencing choice.  (Id. at pp. 222–224, fn. 6, 214 Cal.Rptr. 61.)  Leigh, however, did not address the standard of review of any such determination.

16.   In re Lynch applied a three-pronged approach to determine whether a particular punishment is disproportionate to the offense for which it is imposed.  (In re Lynch, supra, 8 Cal.3d at pp. 429–438, 105 Cal.Rptr. 217, 503 P.2d 921.)   Under the first prong, the California Supreme Court examined the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.”  (Id. at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921.)   Second, the court compared the challenged punishment with that prescribed for more serious crimes in the same jurisdiction.  (Id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921.)   Finally, the challenged punishment was compared with punishments for the same offense in other jurisdictions.  (Id. at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921.)   After its analysis, the court there held an indeterminate sentence of one year to life for recidivists who commit indecent exposure under section 314 was void as cruel or unusual punishment.  (In re Lynch, supra, 8 Cal.3d at p. 439, 105 Cal.Rptr. 217, 503 P.2d 921.)

17.   In People v. Dillon the California Supreme Court reaffirmed In re Lynch and concluded that under the facts in Dillon, the life imprisonment of a 17–year–old defendant for first degree murder based on a felony-murder theory violated California's constitutional prohibition against cruel or unusual punishment.  (People v. Dillon, supra, 34 Cal.3d at pp. 450–452, 477, 482–483, 489, 194 Cal.Rptr. 390, 668 P.2d 697.)   The court in so deciding refined the first Lynch prong, stating trial and reviewing courts should examine “not only the offense in the abstract[,]” but also “ ‘the facts of the crime in question.’   [Citation.]”  (Id. at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   Courts should consider “the totality of the circumstances” including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts.  (Ibid.)  With respect to the nature of the offender, a court should ask whether “the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.”  (Ibid.)

18.   In Solem v. Helm the United States Supreme Court, concentrating on the nonviolent nature of both the defendant's current and past offenses, found a life without the possibility of parole sentence for a seventh nonviolent felony to be unconstitutional.  (Solem v. Helm, supra, 463 U.S. at p. 296, 103 S.Ct. at p. 3012.)   A bare majority of the court held “a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty;  (ii) the sentences imposed on other criminals in the same jurisdiction;  and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”  (Id. at p. 292, 103 S.Ct. at p. 3010.)   These factors appear to be similar to those set forth in Lynch.

19.   The federal prohibition against cruel and unusual punishment contained in the Eighth Amendment is applied to the states through the Fourteenth Amendment.   The prohibition against cruel or unusual punishment is contained in California Constitution, article I, section 17.

20.   Patton argues his current offense should not be treated as a felony, because he only possessed the drugs for personal use and had neither ingested them nor sold them.   Suffice it to say, the Legislature has classified the crime of which he was convicted as a felony, setting its punishment in state prison.  (§ 17, subd. (a);  Health & Saf.Code, § 11350, subd. (a).)

21.   Burglary of an inhabited dwelling, while not necessarily violent in itself, is considered so dangerous that it is included within those crimes designated as “serious” under section 1192.7 and which qualify as a strike under the new legislation.  (See § 667, subd. (d)(1);  People v. Jackson (1985) 37 Cal.3d 826, 832, 210 Cal.Rptr. 623, 694 P.2d 736.)   Further, there is little doubt many, if not most, individuals in our society have a great need for security in their homes, where they may be expected at any time to respond defensively to perceived threats to their living space or to loved ones.   Considering the inherent danger involved, such crime is thus not a minor nonviolent property theft violation as asserted by Patton.

22.   Patton's juvenile criminal history reveals his criminal endeavors at that age included attempted burglary, prowling, vandalism, petty theft, several completed burglaries, auto theft, and possession of stolen property.

23.   The probation report also reveals two residential burglary counts in case No. CR 109145 were dismissed when Patton pleaded guilty to the residential burglary in case No. CR 109027.

24.   Nor do we find persuasive trial counsel's emotional plea made at sentencing that Patton's problems were not his fault, but rather the fault of his parents who introduced him to drugs.   Counsel characterized Patton's situation as a medical problem which was not treated while he was under juvenile supervision.   He considered Patton a victim of “intergenerational [drug] effect” and a child who had had no adult supervision.

25.   The legislative analysis for Proposition 184 included a table informing the voters that a defendant with two prior serious or violent convictions whose current crime is neither serious nor violent would receive a life sentence of at least 25 years, the same sentence that would be imposed on a defendant whose current offense is a violent or serious felony.  (Ballot Pamp., Analysis of Prop. 184 by Legislative Analyst, Gen.Elec. (Nov. 8, 1994) p. 34.)   Three of the five examples of prior serious or violent offenses used in the table were burglary of a residence.  (Ballot Pamp., supra, at p. 34.)   The argument against the proposition stressed that the measure applied even though the third strike was neither a serious nor a violent felony and claimed that three out of four people convicted under the proposition would be imprisoned for nonviolent crimes.  (Ballot Pamp., rebuttal to the argument in favor of Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 36;  Ballot Pamp., supra, argument against Prop. 184, p. 37.)   Nonetheless, the voters approved the proposition by a margin of 72 percent to 28 percent.   (Statement of Vote, Gen.Elec. (Nov. 8, 1994) p. ix.)

26.   Although the trial court found application of the mandated 25–years to life term under the three strikes law to be cruel or unusual in this case, it found Patton's current offense and past record serious enough to impose an upper term for the current offense, which was then tripled to obtain a minimum parole date of nine years for his life term.   Ironically, by so doing, the court provided additional support for our conclusion Patton is the type of repeat offender for which the three strikes law was enacted.

FOOTNOTE.   See footnote *, ante.

HUFFMAN, Associate Justice.

WORK, Acting P.J., and BENKE, J., concur.