Opinion
D058810 Super. Ct. No. SCD214199
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GALLARDO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed.
A jury convicted Robert Gallardo of assault with a deadly weapon or with force likely to produce great bodily injury based on strangulation (Pen. Code, § 245, subd. (a)(1); count 2), two counts of corporal injury to the mother of his child (§ 273.5, subd. (a); counts 4 & 6), forcible false imprisonment (§§ 236 & 237, subd. (a); count 5), and misdemeanor escape from arrest (§ 836.6, subd. (b); count 7). The jury also found true allegations that Gallardo had personally used a deadly weapon, a rope, in the commission of counts 2 and 4 (§ 1192.7, subd. (c)(23) (count 2); § 12022, subd. (b)(1) (count 4)).
All statutory references are to the Penal Code unless otherwise specified.
The jury found Gallardo not guilty of a second assault charge based on strangulation (count 3) and found two great bodily injury allegations as to counts 2 and 4 not true. The court granted the prosecution motion to dismiss the count 1 forcible rape after the jury deadlocked on that charge.
In a bifurcated proceeding, the trial court found true that Gallardo had suffered four serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), which also constituted one serious felony under section 667, subdivision (a)(1) and one prior prison term (§ 667.5, subd. (b)). At sentencing, after denying Gallardo's motion to strike any of his strike priors with regard to counts 2, 4 and 5, the court struck all four strike priors as to count 6 and imposed a total prison term of 32 years to life. The court then imposed various restitution fines and granted Gallardo 15 days of presentence custody credit, consisting of 13 actual days served and two days of local conduct credit under section 2933.1.
Gallardo filed a timely appeal, challenging only his sentence. He contended the trial court abused its discretion when it refused to strike all but one of his prior strike convictions with regard to counts 2, 4 and 5 in the interests of justice and the resulting three indeterminate sentences of 25 years to life constitute cruel and unusual punishment under both the state and federal constitutions because they are disproportionate to his current offenses. In response, the People asserted the matter must be remanded for the limited purpose of having the trial court select and impose a full strength term for count 6 and to correct the judgment and abstracts of judgment for various sentencing errors, including the award of presentence credits. Gallardo did not oppose the issue of unauthorized sentencing raised by the People. In this regard, we granted Gallardo's request to augment the record with a supplemental clerk's transcript showing the trial court amended the abstract of judgment to award him presentence custody credit of 361 actual days and 54 section 2933.1 credits for a total of 415 days nunc pro tunc to the date of sentencing.
In his first appeal, we affirmed Gallardo's convictions and true findings, but reversed his felony sentence as unauthorized and remanded the matter for resentencing.
At the sentencing hearing following remand, the trial court again considered all of the material presented at the first sentencing hearing. The court also reviewed the transcript of the first sentencing hearing and the opinion of this court that remanded the case for resentencing. No new material was presented to the court.
Gallardo was sentenced to 25 years to life on counts 2, 4 and 5, with the sentences on counts 2 and 5 stayed pursuant to section 654. The court imposed a consecutive five-year term for the serious felony prior (§ 667, subd. (a)(1)), plus one year for the use of a deadly weapon (§ 12022, subd. (b)(1)), for a total indeterminate term of 31 years to life. The court then imposed a full strength consecutive determinate term of three years, representing the middle term for count 6.
The court recalculated Gallardo's custody credits and imposed the same fines and assessments as imposed at the first sentencing hearing.
Gallardo again appeals, challenging his sentence. In a somewhat unusual approach, Gallardo has not fully briefed the issues of the trial court's refusal to strike all but one of the "strike" priors or whether the 25 years-to-life term for count 4 constitutes cruel and unusual punishment. Appellate counsel recognizes the custodial sentences currently imposed are essentially repeats of the original sentences, except that count 6 has now been imposed as a full strength consecutive sentence. Counsel also recognizes the sentences currently imposed were based on the same material and reasoning as those originally imposed in this case. In the appeal from the first sentencing we rejected both of Gallardo's challenges to his sentence. Gallardo wishes to preserve his challenges for possible federal review. Thus, he asks this court, in the "interest of judicial economy," to simply reconsider the contentions he briefed in his previous appeal, without rebriefing the same issues in this current appeal.
On this record, Gallardo's proposal makes sense and we adopt it here. The same sentencing decisions were made in the trial court on this appeal as were made in the first appeal. The court expressed the same reasons for its current sentences as the court did in the first appeal. We have previously considered and rejected both contentions raised by Gallardo regarding his sentence. The record and prior briefing on those issues is sufficient to permit this court to make a reasoned decision. A new round of briefing the same issues on the same facts would indeed not be in the interest of "judicial economy."
Accordingly, we will largely repeat the statement of facts and the analysis from our prior opinion, with the exception of the issue of an unauthorized sentence raised in the first appeal, which has now been corrected on remand.
FACTUAL BACKGROUND
As Gallardo does not challenge the sufficiency of the evidence to support his convictions and findings, we omit the traditional statement of facts, merely sketching the facts regarding his current convictions that stemmed from several domestic disputes between him and Angelica E., the mother of his daughter born in February 2008. Gallardo had been in an intimate dating relationship with Angelica for about eight months in 2007, leaving her in October 2007, when he went back to prison for a parole revocation term. On May 31, 2008, after getting out of prison, Gallardo visited Angelica, who was then living with another man, and met his infant daughter for the first time. Although Angelica continued in her relationship with the other man, she began spending some intimate time with Gallardo again.
On June 8, 2008, while Gallardo was with Angelica and his child at the beach, they got into an argument when he complained about her other relationship, accusing her of not taking proper care of his baby and she slapped him in the face. Gallardo then slapped her twice in the face fairly hard with an open hand, causing her to see stars and suffer a cut and bruised lip. The two continued to argue about Angelica's relationship with the other man and Gallardo kept his daughter with him overnight at the home of another former girlfriend.
The next afternoon, Gallardo called Angelica to have her bring him some diapers and formula for their baby. After doing so, as Angelica was leaving for work, Gallardo followed her to her car, took the keys out of the ignition and told her to come in the house. Once inside, an argument ensued and Gallardo became physical, grabbed Angelica by the hair, threw her to the ground, slapped her head and kicked her as she lay curled up on the floor covering her face. As Angelica stood up, Gallardo grabbed a yellow rope and wrapped it around her neck from behind, squeezing it tight until she fell backward to the floor on top of him and passed out. When she awoke and tried to get up, Gallardo choked her again. When she regained consciousness, Gallardo ordered her to the kitchen where they continued to argue and he physically prevented her from leaving the house. Eventually, Gallardo drove with Angelica and his daughter to pick up another daughter of his from school. After arriving back home, Gallardo returned Angelica's keys to her so she could go to work, telling her not to make a scene.
When Angelica arrived at work late, upset, crying, she told her supervisor that Gallardo tried to strangle her. Her supervisor called the police, who after an initial investigation, arrested Gallardo on the instant charges. While the transporting officer filled out paperwork for Gallardo's custody, he escaped from the patrol car. Several days later, the police found Gallardo hiding out at a friend's house.
DISCUSSION
I
MOTION TO STRIKE
In this second appeal, Gallardo again contends the trial court abused its discretion when it denied his request to strike all but one of his prior convictions because his four prior strikes all arose from a single incident that was punished in a single case after he pled guilty, his current offenses arose from a unique set of circumstances involving an isolated domestic dispute, his other criminal history is minimal with no history of real violence, and the court primarily relied upon unreliable hearsay in the original probation report regarding the strike priors in denying his request. We disagree.
We review a trial court's decision not to strike a prior conviction under section 1385 under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); see also Romero, supra, 13 Cal.4th at pp. 530-531.) Under this standard, we do not reweigh the sentencing factors or substitute our evaluation for that of the trial court. A decision will not be reversed merely because reasonable people might disagree; rather, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances [, such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible facts in declining to dismiss [citation], [or where] 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Carmony, supra, 33 Cal.4th at pp. 377-378.)
A trial court must also consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not been previously convicted of one or more serious and/or violent felonies" ' " before exercising its discretion to strike a prior felony conviction. (Carmony, supra, 33 Cal.4th at p. 377; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
The burden is on the party attacking the trial court's decision not to dismiss the prior strike conviction to clearly show that the decision was irrational or arbitrary and absent such showing, it is presumed the court acted to achieve a legitimate sentencing objective. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Gallardo has not met that burden.
The trial court here was clearly aware of its discretion to dismiss a strike and did so with regard to count 6. Gallardo has failed to point out anything in the record that shows the court declined to exercise its discretion regarding counts 2, 4 and 5 based on a clearly improper reason or that it did not properly consider any mitigating factors. "Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence." (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888, disapproved on another ground in People v. Walker (1991) 54 Cal.3d 1013, 1022-1023.) It is not our role to reweigh the sentencing factors or substitute our evaluation for that of the trial judge who in this case clearly expressed the view that Gallardo's increasingly violent criminal history coupled with his poor performance on probation and parole did not justify the exercise of his discretion to strike the priors with regard to counts 2, 4 and 5. The court's exercise of its discretion is amply supported by the record.
To the extent Gallardo continues to argue the court abused its discretion by improperly relying upon hearsay in the probation report regarding the four earlier robbery convictions to deny his request to dismiss the strikes, such argument fails. Not only may the court properly consider and rely upon responsible hearsay in exercising its sentencing discretion (see People v. Otto (2001) 26 Cal.4th 200, 212-213), Gallardo's counsel did not object below to the court's consideration of the facts stated in the probation report regarding his earlier robbery case. Further, the recitation of those earlier robbery facts was used by the court to counter Gallardo's family's and friend's representation in letters that Gallardo was a peaceful man and not violent, which was merely one factor the court considered in determining Gallardo fell under the three strikes law.
Moreover, contrary to Gallardo's reliance on People v. Burgos (2004) 117 Cal.App.4th 1209, the fact that a defendant's prior convictions arose from a single occasion is merely one factor to be considered by a court in exercising its discretion under Romero rather than a requirement to strike the prior convictions. (See People v. Scott (2009) 179 Cal.App.4th 920, 930-931.) In addition, unlike the defendant's crimes in Burgos, supra, 117 Cal.App.4th at page 1212, which arose from a single criminal act, Gallardo's prior robberies, although committed during the same episode of criminal activity, consisted of multiple acts against four different victims that were exempt from the sentencing restrictions of section 654. Gallardo also has had a dismal overall record of performance on parole, a factor not present in Burgos. (Id. at pp. 1216-1217.)
On this record, Gallardo has simply not shown that he warrants departure from the legislatively preferred three strikes sentencing scheme. Because he has made no effort to change his criminal behavior after getting out of prison for a parole violation, which followed an earlier lengthy incarceration after an even earlier probation violation for crimes of increasing severity, Gallardo is the type of recidivist who falls wholly within the "spirit" of the three strikes law. (Williams, supra, 17 Cal.4th at pp. 162-163.) Under these circumstances, we cannot find that the court abused its broad sentencing discretion in this matter. (Carmony, supra, 33 Cal.4th at pp. 377-378.)
II
CRUEL AND/OR UNUSUAL PUNISHMENT
Characterizing his sentence as three indeterminate 25-year-to-life terms under the three strikes law, Gallardo next contends his sentence constitutes cruel and unusual punishment as a matter of law under both the state and federal constitutions because they are "grossly" disproportionate to the gravity of his current offenses. In support of his claim, he looks at the sentencing range of each of his convictions as a first time offender, noting the longest term would be four years, which is five times less than he received in this case and more than a defendant would receive for second degree murder. He also uses the same base terms for comparison with punishments under other states' recidivist statutes. We reject Gallardo's arguments and find the 25-year-to-life term imposed in this case does not constitute cruel and unusual punishment.
Contrary to Gallardo's assertion otherwise, he is only subject to serving one 25-year-to-life three strikes term for count 4 as the court stayed the three strikes terms for counts 2 and 5 under section 654. Third, Gallardo fails to appreciate the punishment under scrutiny here is the result of not merely his current count 4 felony conviction, but also a combination of his qualifying priors which triggered the mandatory 25-year-to-life sentence under the three strikes legislation (§ 667, subds. (d) & (e)), the general facial constitutionality of which he does not challenge. Thus it is as a recidivist felon that Gallardo is being punished and not as a theoretical first time offender for whom he bases most of his arguments. From our independent review of the record in light of the applicable law, we conclude imposition of the required three strikes term for count 4 in this case is not cruel or unusual.
To the extent Gallardo relies on article I, section 17 of the California Constitution, his challenge must be considered in light of In re Lynch (1972) 8 Cal.3d 410 and People v. Dillon (1983) 34 Cal.3d 441 (Dillon). The power to define crimes and prescribe punishment in California is a legislative function and the courts 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 the constitutional prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at pp. 477-478; In re Lynch, supra, 8 Cal.3d at pp. 423-424.) It is well accepted that recidivism in the commission of multiple felonies poses a manifest danger to society, which justifies the imposition of longer sentences for subsequent offenses. (See People v. Karsai (1982) 131 Cal.App.3d 224, 242 [recidivist statute for violent sex offenders], overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) 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 long-established. (See In re Rosencrantz (1928) 205 Cal. 534, 535-536, 539-540 [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 [discussing California's long history of upholding habitual offender statutes].) In explaining the validity of such recidivist statutes the Supreme Court of the United States has stated:
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.) 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.) Second, the court compared the challenged punishment with that prescribed for more serious crimes in the same jurisdiction. (Id. at p. 426.) Finally, the challenged punishment was compared with punishments for the same offense in other jurisdictions. (Id. at p. 427.) 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. (Id. at p. 439.)
In Dillon the California Supreme Court reaffirmed In re Lynch and concluded that under the facts of that case, 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. (Dillon, supra, 34 Cal.3d at pp. 450-452, 477, 482-483, 489.) 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.) 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.)
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"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.)
Ultimately, the test whether a specific punishment is cruel or unusual is whether it is " 'out of all proportion to the offense' . . . so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinson v. California (1962) 370 U.S. 660, 676 and citing In re Lynch, supra, 8 Cal.3d at p. 424.) Determining whether a given punishment is cruel or unusual depends on the facts of the specific case. (In re DeBeque, supra, at p. 249.) 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, 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, at pp. 254-255; see, e.g., Dillon, supra, 34 Cal.3d at pp. 479, 482-488.) Successful challenges to proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
Here, Gallardo has not met that burden. In addition to his current count 4 offense of corporal injury to the mother of his child, which was aggravated by committing it with a deadly weapon, Gallardo was found to have previously committed armed robberies, which are serious prior felony convictions having tremendous potential for injury or death.
Even if we review the matter by analyzing the factors under the first Lynch prong, nature of the offense and/or offender, we reach the same conclusion that the 25-year-to- life term imposed for count 4 does not constitute cruel or unusual punishment. Gallardo, unlike the youthful 17-year-old first time offender in Dillon, was 27 years old at the time of sentencing and had already suffered four prior serious felony convictions, served a six-year prison term, plus additional prison time for revocation of parole. The circumstances of his current count 4 offense reveal he, unlike the youth in Dillon, was fully culpable for its commission; i.e., his attack on Angelica with the rope was supported by DNA and other physical evidence. By committing this new felony while on parole, Gallardo has shown he has no intention of abiding by the laws of the State of California.
Further, because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals (see In re Rosencrantz, supra, 205 Cal. at pp. 535-536, 539-540; People v. Weaver, supra, 161 Cal.App.3d at pp. 125-126), it is illogical to compare Gallardo's punishment for his count 4 "offense," which includes his recidivist behavior, to the punishment of others in California who have committed the same underlying or more serious crimes such as first degree murder, but are not qualified repeat felons. Such other offenders would likely receive similar or longer sentences under the three strikes law if such were applicable to them because of recidivist conduct.
As for a comparison among other states' recidivist statutes, even though California's three strikes law may provide more severe punishment in some respects than other jurisdictions' schemes, overall, it "is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders." (People v. Ingram (1995) 40 Cal.App.4th 1397, 1416, disapproved of on another point in People v. Dotson (1997) 16 Cal.App.4th 547, 559.)
In addition, in light of the holdings in Harmelin v. Michigan (1991) 501 U.S. 957, Rummell v. Estelle, supra, 445 U.S. 263, 284-285, and the more recent United States Supreme Court companion cases of Ewing v. California (2003) 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63, which held lengthy indeterminate life sentences imposed under California's three strikes law for recidivist criminals did not violate the Eighth Amendment, any reliance in this case upon the federal prohibition of cruel and unusual punishment to argue "gross disproportionality" would likewise be unsuccessful. As already noted, Gallardo suffered four prior strike convictions before the offenses in this case. He had served a prior prison term and had recently been released on parole when he committed the current violent crimes.
Given all the relevant considerations, that Gallardo will serve 25 years to life for his count 4 felony conviction simply does not shock the conscience or offend concepts of human dignity. We thus conclude Gallardo has failed to establish his sentence for count 4 is so disproportionate to his "crime," which includes his recidivist behavior, and the indeterminate term imposed for that crime does not violate the constitutional prohibitions against cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.